little weight to congress' decision to transfer the land to private hands. the district court viewed it as a defines of an earlier order to take it down. justice alito joined the opinion in full except for the remand. he thought there was not an establishment claw violation, that there was no need for a remand. two justices, scalia and thomas, said there was no standing on pavon of the individual to challenge the injunction without regard to whether he had standing to challenge the original display. he didn't have the standing to challenge the transfer to private hands. three judges, they held there was an establishment clause violation with the transfer statute. justice breyer ruled only on

injunction based grounds, not establishment clause grounds. he wanted to dismiss the writ as improperly granted. . >> the district court that

approached the injunction that he found problematic and i suppose what one could say is in constitutional avoidance terms that there's a nonconstitutional grounds to reverse the decision maybe that's the route that he chose. he didn't put that exactly in the opinion but i think that may have motivated him to come to that result. >> eight justices were ready to decided case but it brings to mind another case in the establishment clause context where justice kennedy seemed to be the only justice who continued to like the distinction between cowen and valley forge. eight other justices were ready to decide one another whether there would be taxpayer standing in establishment clause cases. eight justices seemed to suggest that the court's distinction was

fairly incoherent. yet because of one justice and the disposition of the case that's what the lower courts have to continue to wrestle with. so these are very difficult cases for the court. they don't produce majority opinions. as a result they don't produce any further clarity in the law so that the next time the court approaches an establishment clause case there's no greater reason to think that they're going to come to a clear disposition or a majority opinion. and i think this is a frustrating area for the court. i can only imagine how frustrating it must be for other judges, district court judges and court of appeals judges trying to apply these presidents. the best illustration administration is that lower courts in this case as so many lower courts have to do took the governing question from the supreme court as being the lemon test. now, this seems that when these cases actually get to the supreme court the justices agree that lemon test is entirely unsatisfactoriry and tend -- sometimes they do focus on it. there have been cases in the 10

commandments case was one where they focused on it. but so many of these cases, the lower courts and parties have wrestled with lemon and the court goes on and decide it on some other principle. >> christian legal society? >> let me talk about two other cases briefly that haven't been decided yet but have been briefed and argued and i think they're very interesting. one is the christian legal society against martinez case. this is a case that has a fascinating mixture of freedom of association rights, nondiscrimination prince and government funding principles all rolled into one. the issue in a nutshell is that hastings law school which is a public law school and so a state actor has a nondiscrimination policy for its students groups. so in order to get funding from the school and be recognized as an official student group, a student group has to sign on to a nondiscrimination policy. the nondiscrimination policy at issue is still an open question after a supreme court argument. and i think that supreme court

in this case had a lot of frustration because they weren't sure exactly what nondiscrimination policy was atish issue. the stated policy prohibits discrimination on a variety of grounds but a limited number of grounds including religion. and it creates this odd dynamic when applied to the christian legal society that a group that is definedded by religion, like the christian legal owe society, is not allowed to discriminate on the bases of religion. and that certainly imkates the freedom of association rights of the group. hastings also, though, stated that it had and the plaintiffs in this case stipulated to the existence of what was called an all comers policy, which basically said that every group had to take all comers and so the student reps group couldn't discriminate against democrats and so on and so forth. so much of the oral argument in this case was really some

frustration on the court as trying to figure out which policy was really before them. i think follow thing is a fair summary of the argument, which is that the courts seemed to have more sympathy for the all comers policy, though there was some sort of residual kind of question about why that policy really made any sense. why did it make any sense to allow every student -- to force every student group to take on people who did not believe in their basic prince. but nonetheless, i think the court was more receptive and more sympathetic to that policy. i think that some justices at least had some concerns that there were unique problems when the government tried to tell religious groups that they couldn't discriminate on the basis of religion, that that actually may be a role that government shouldn't be performing. it's too burdensome on the freedom of association rights of the group. if you want i'll talk about the last case again that's been argued but not decided is a case called dill against washington. and although this was briefed certainly as a first amendment case, it's not really a first

amendment free speech case. i think ultimately it's a right to privacy case. and it's an unusual privacy case at that. because what's at issue here is whether or not signatures on a referendum petition will be -- which have to be of course disclosed to the person who gathers the signature have to be disclosed to the secretary of the state in counting up whether there's a reck which is it number of petitions. the question is whether those signatures that are disclosed for those purposes can also be disclosed to the public at large through the state public records act, kind of a state version of foia. and i think in this sense it's an unusual privacy right because you're taking participation in the government process, you're taking a signature process that's by its nature is to a certain degree public, but then you're saying at a certain point there's a limit on how far it should be distributed. two things i think are important about this case. one is the issue here is not

whether or not there would be the possibility of protecting people against actual violence or actual harassment. the issue here was a broader claim that even in the absence of specific evidence that -- in the context of a particular referendum people had to be protected against violence or retribution. this is a case that suggested there's an even broader right. and that's the issue that was before the court. the last thing i'll say is that i think a lot of people in looking at this case saw this kiss kind of through the lens of some of the disagreement that is were engendered by proposition 8. they saw it through the lens of the court's decision 5-4 to not distribute the video from the constitutional challenge that's going on in front of judge wopner's court. the particular referendum here, even though it was a broader challenge, was a challenge involving the marriage issue. and so ace say, a lot of people

were looking at it through the lens of those issues. and because of that i think some people were surprised that the justice that seemedded most hostile to the constitutional right in this case of oral argument was justice scalia. i think if you kind of back away from the particular context of the case maybe that's not surprising. because you had a litigant that was going in front of the court asking it essentially to develop a new constitutional right, a right to privacy that although moored to the first amendment i think could be somewhat described as somewhat penumbral of the first amendment. so in that case i think some hostility from justice scalia should not come as a shock. but i think for some people watching this course thinking about this through the lens of proposition 8 and judge walker's order were a little surprised. >> justice scalia's questioning was quite striking i think to everybody in the courtroom. he was extremely eloquent about what he termed "civic courage"

and the need for civic courage in a democracy. so i think people were surprised and struck by it. irwin. >> let me start with salazar versus bono case. i think its greater significance is what didn't happen. in the spring of 2005, paul and i were on opposite sides arguing a case in the supreme court, van orden versus terry which involved a 10 commandments monument that sits right at the corner of the texas state capitol and texas supreme court. as i approached oral argument i realized i had no chances of getting the votes of chief justice rehnquist or scalia, kennedy and thomas. they had repeatedly taken the position that establishment clause does not require a separation of church and state but rather took an accommodationist philosophy. they said the government should regard it as violating the establishment clause only if it literally established a church or coerces religious

participation or discriminates among religious secretaries. we both perceived that justice o'connor was likely the swing justice in that case. bringing up a question you asked earlier a reporter called before oral argument and said you cite justice o'connor 23 times in your brief. i said so? then we were both surprised -- on the other hand, i was able to get justice o'connor's vote and lost 5-4 with justice breyer concurring in the judgment the majority with no majority opinion showing again what paul was saying a moment ago. but now with chief justice roberts and justice alito having replaced chief justice rehnquist and justice o'connor, i think the conventional wisdom is there are five votes for that position on the court that the government violates the establishment clause only if it literally establishes religion or coerces religious participation or discriminates among secretaries in giving aid. the question was how far would the court go in this direction

in salazar versus bono? might we accomplish the same thing with regard to religious symbols by saying that no one has standing to challenge religious symbols because the majority perceives that no one is injured? justices scalia and thomas in their opinion concurring in the judgment in salazar versus bona the denied standing. plurality opinion by justice kennedy said that standing couldn't be challenged here because of the unusual procedural posture of this case, this was a collateral enforcement proceeding and standing hadn't been challenged in the original proceeding. but i do think that this is one of the areas where justice kennedy is significantly more conservative than justice o'connor, where there are five votes to change the law, and as i say, to me what's most important is it didn't happen in this case. now, elena, you asked the question what's expected to happen on remand. i think justice kennedy's plurality opinion left no doubt as to where he stands on that issue and therefore where the

majority is. he said that congress here was striking a delicate balance and he clearly approves what was done. now, i'm concerned what that's going to mean in terms of the doctrine of the establishment clause. now, if congress can take a cross that otherwise violates the first amendment and make it permissible by creeding ownership of the parcel of land to a private group could a city put a large cross atop city hall and make it permissible by giving ownership of that piece of the rooftop to a private group? it's not what's the distinction here. so again i think the greater significance that the court didn't decide. as the dean of a public university law school i am especially interested in what's going to happen in christian legal society versus martinez. i want to emphasize something that paul said that this case may we well turn out the justice read the record. the christian legal society stipulated in federal district court that hastings administered its nondiscrimination policy in an even-handed way.

but if you read its brief to the supreme court, it's all about how hastings discriminated in applying its nondiscriminatory policy allowing some student groups like laraza to discriminate but keeping the christian legal society from doing so. so it was that the christian legal society here wanted to move as far away from the stipulation as possible and try to argue the actual facts. on the other hand, hastings wanted to argue to the supreme court entirely based on the stipulation and didn't want to discuss the actual facts. and that's what i think caused all the justices so much consternation in oral argument. the one thing that i would add to paul's description of the case is the law school's interest in a nondiscriminatory policy. i as the dean of a public university law school want to be able to say that all student groups that are officially recognized that get school money should be open open to all students.

if a group wants to meet without being accessible to all it can certainly do. so the students can meet privately. the students can get together with whoever they want. but if it's going to get government money, if it's going to be able to get the privileges that goes from being an officially recognized student group, there's an important interest in the government nondiscrimination. so in that sense i think this case, like say boy scouts of america versus dalen in 2000 posed a situation between the -- and to me that's what makes doe versus washington so interesting, the tension between on the one hand the free speech interest in nondisclosure to keep speech from being chilled versus on the other hand the free speech interest that's embodied by the washington public record act in having dissemination of information. >> erwin, there was a pair of important eighth amendment cases this year involving the punishment that can constitutionally be imposed on juveniles. let's talk about those cases,

sullivan and graham. >> they're important on so many levels. joe sullivan was 13 years old in 1989 when he raped a 72-year-old woman. for that crime he was sentenced to life in prison without the possibility of parole. terrence graham was 16 in the year 2003 when he participated in an armed robbery. one of the other participants hit a merchant over the head. he too was sentenced to life in prison without the possibility of parole. thus the issue presented by these cases is, is it cruel and unusual punishment to impose a sentence of life without possibility of parole for crimes committed by juveniles. in january 2005, in roper versus simmons, the supreme court said that it's cruel and unusual punishment to impose the death penalty for a crime committed by juveniles. and graham and sullivan are arguing to the supreme court that likewise life without

possibility of parole was cruel and unusual punishment for crimes committed by juveniles. on the other hand, in 2003 in ewing versus california and lotier versus androtti the supreme court upheld very long sentences functionally for life without possibility for parole for shoplifting. ewing was a man who stole $1,400 worth of golf clubs and got a sentence of life without possibility of parole for 25 years. and androtti a case that i argued and lost, my client received a sentence of life without possibility of parole for ooh 50 years for stealing $150 worth of videotapes in a k-mart in california. emphasizing great def rens to the state in determining appropriate punishments. ultimately the issue before the justices, is this more like roper or is this more like ewing

and androtti? and that's how the case was briefed. in oral argument, chief justice rob pushed hard the notion that age should be a factor that jury can consider but that there shouldn't be a bright line rule that life without parole for a crime committed by a juvenile is cruel and unusual punishment. that was the law with regard to the death penalty before roper, that age was something the jury could consider but there wasn't a bright line rule. roper created a bright line rule. the question is will the court do so here for life without possibility of parole. >> paul? paul, maybe the most important civil rights case of the term, there's another about the statute of limitations, but maybe was a case that you argued which came in the guise of an attorney fee case. so talk a little about kenny a. >> i would be very happy to talk about the kenny a. case since it's a subject near and dear to

my heart as i did argue the case. the question here before the court was the availability of attorneys fees under section 1988 for a successful action brought under 42 u.s.c. 1983, and in particular the question was as it was presented to the court and the question presented was whether you could have ever have an enhancement above and beyond the lodestar amount in calculating attorney's fees. this sounds like a very technical aspect of simply attorney's fees compensation and the like. i think i share your sense, though, that it's a very important case. because i do think that 1988 and the attorney's fees provision is really the provision that provides incentives for bringing 1983 actions and the extent to which there are robust incentives for bringing 1983 actions so that lawyers who bring those actions and are successful will be compensated, to the extent to which there are those robust incentives will determine how many 1983 actions

are brought which in term will determine the extent to which the civil rights laws and the constitutional -- constitution itself will be enforcedment court throughout the country. so i think the issue is quite important. as the issue came to the court, as i say the question was, should there be enhancements above and beyond the lodestar. this was an interesting issue from the standpoint of going back to the original legislative understanding. 1988 was passed in reaction to the alieska case. for years before that case courts had routinely as a common law matter, federal common law mart, had awarded attorney's fees in civil rights cases. ancient comes along and says there is an american rule. this is america. so absent a specific congressional authorization you generally don't shift legal fees to the prevailing party. congress reacted very quickly and passed what became section 1988 to provide the missing

statutory predicate that alieska suggested was necessary. at that time there really was not such a thing, at least a well-established process as the lodestar amount. lower courts in the federal common law area had used kind of this was the era of the multifactor tests. they used the multifactor test to calculate attorney's fees. but immediately thereafter, courts started applying additional rigor to the process and used the lodestar amounts in calculating a reasonable number of hours times a reasonable hourly rate in order to come up with the lodestar amount. as first envisioned, though, this was very much a starting point for the analysis, not an ending point for the analysis. there was a possibility for adjustments ward and downward to the lodestar amount. in a pattern of cases, though, over a decade and a half, the court had kind of one after another rejected various bases for enhancing the lodestar amount. so in this case the petitioners, my opposing party in the case i

think were certainly within their rights to sort of ask the court, are there any circumstances in which enhancements to the lodestar amount were were going to be allowed. the court fortunately answered that question 9-0 that there are circumstances in which enhancements to the lodestar amount can take place. they specifically recognized that there can be in rare cases enhancements for superior performance and superior results. there also can be enhancements for unusual delay and a few other factors. the court in the disposition of this particular case unfortunately for my clients decided 5-4 that they would remand the case rather than simply affirm the sizeable enhancement that was awarded by the district court. of course, of the the optomist, we are going back to the district court that gave the initial enhancement. i think with the court reaffirming the availability of enhancements we're confident

there will be some enhancements in this particular case. let me underscore the importance of the court reaffirming the availability of enhancements in these circumstances. because the alternative really would be to have essentially a meter in these cases that could only run backwards. because once you calculate the lodestar amount, there are a number of bases for cutting back on that with the benefit of hindsight you can see that areas of research or certain motions did not -- were not critical to the ultimate success in the case. so it's very easy for the meter to run backwards by adjustments to the lodestar amount and the like. and i think having at least the possibility in the exceptional case, the rare case for an upwarden hansment dud level the playing field quite a bit. i think ironically it maybe that primary effect of this decision that says that in some cases you can have an enhancements to the lodestar amount, the net effect of that may be that most of these cases will settle for something close to the lodestar

amount. because now both the defendant and the plaintiff essentially have something to gain and something to lose over a dispute about the -- whether the lodestar should be adjusted, whereas if you had a system where the number could only go down there's really not much incentive for the state or the defendant in the particular case not to contest the fees amount. so i'm hopeful that this decision will be important, it will give an appropriate incentive to civil rights litigation under section 1983, but i'm also hopeful that what it will really produce is more settlements that approximate the lodestar amount. >> so justice thomas has a concurring opinion in the case in which he reads the majority's decision somewhat differently. he says that what he calls the decisional arc is toward simple reliance on the lodestar and against any enhancements upward. and although he acknowledges that court doesn't reject the idea of any enhancements in any circumstances, he says that this

case is consistent with that decisional arc against hains. irwin, do you think he's right just as a descriptive matter? >> yes. though i think it's a question of degree. i mean, paul did a great job arguing before the court in that case. the argument is there can be adjustments in the lodestar but i think it's also clear that's going to be more the exceptional case. then you get to how exceptional? that's why i say it's a matter of degree. and i think that's going to take the future to be able to tell. >> the only thing i would add, though, is i do think that there were because of this decisional arc of prior cases, i think there was a real question going into this case whether hains would ever be available. and despite what himself about an opinion that four other justices joined, i think the effect of justice alito's opinion for the court is to actually put enhancements on

more solid ground than they were before this decision. so i guess i'll vote myself as an optomist on this score. >> ok. paul, a few important structure of government cases, let's call them. talk about those. >> sure. and we really have both actions of the structure of government before the court this year, both the federalism axis and the separation of powers axis. all of the cases i want to talk about briefly have not been decided yet so that will keep my discussion of them short. but i can at least tee up the issues and essentially hopefully provide some direction about what to watch for in these decisions. the first case i'll talk about is another case that i argued a part of which is the mcagainst the city of chicago -- mcdonalds against the city of chicago. this is the case about whether the second amendment which the court recently revised in the heller decision should be applied against state action and against the advocate in this case this was a little like almost going into a time capsule

and revisiting the issue of incorporation. that's an issue that i remember reading about in law school, but also thinking the incorporation debate which really occupied the court in the 1950s divided the court. they thought a lot about it. but that issue had largely been settled. and it may be that at the end of this case that is true, that court will make a decision whether to incorporate the second amendment and that will essentially be the end of the matter for the time being. so give you the background on the case, the city of chicago and the village of oak park have handgun bans that really are very similar to the ban that was at issue from the district of columbia in the heller case. for that reason it was no surprise that next major case that would involve a challenge to a handgun ban would come through the city of chicago and the village of oak park. indeed, the lawsuits in this case were filed literally the day that heller decision was handed down by the supreme court. so that morning the lawyers got a successful decision in heller.

that afternoon they filed their complaint in federal district court in chicago. the issue came to the seventh circuit. the seventh circuit adhering to some old essentially preincorporation doctrine cases said that second amendment doesn't apply to the states. the issue was teed up before the supreme court. i think much of the academic interest in this case was generated by the fact that petitioners in this case, the mcdonalds petitioners, really emphasized in their brief the privileges or immunities clause and essentially asked the supreme court to overrule the slaughter house case from 1873. it's not that often that you go into the supreme court and your principle argument is to ask the supreme court to overturn one of its presidents. it's even more rare to do it for a precedent that's been on the books for over 100 years. but petitioners did that, recognize, the fact that there had been broad-scale across the political spectrum academic

criticism of the court's incorporation doctrines. and many scholars of various different stripes had come to the conclusion that really the court made a wrong turn in 1873 and the privileges or imunits clause was really the right vehicle to incorporate the bill of rights. i think my client, the n.r.a., in their briefs stressed the more straightforward path to incorporation, which would be an application of the court's due process incorporation cases. and so the issue came to the supreme court where the supreme court had to decide whether to incorporate the second amendment, it also had two alternative paths to incorporate the second amendment. i wouldn't want to venture a prediction about the case since it's still pending. as i say i represented one of the parties in the case. do i think it's fair to say that oral argument if it's any indication that courts seemed more sympathetic due process route than the immunity clause. >> the oral argument had --

there were many remarks which expressed some degree of skepticism about academic theorizing. >> especially from justice scalia. >> i think he said at one point to the attorney from mcdonalds, are you trying to be out for a law professor here? i wasn't surprised by that. since 1873, there's only one supreme court case that hasn't been overruled that used the privilege in use clause. and that was a case in 1999 that an use that protected the right to travel. and i think there is a reluctance on the part of the conservative justices on the court to open up a brand-new area of constitutional litigation, the privilege and use clause, especially when it's unnecessary. every prior decision with regard to incorporation has done so by finding the provision of the bill of rights to be included in the due process clause of the 14th amendment. it's such an easy path for the supreme court to do so here. i know that substance due

process has negative connotations. i know that many have criticized from a framer's intent perspective whether incorporation is appropriate. but the reality is there's not a majority of the court that wants to reconsider incorporation. we take for granted that virtually all of the bill of rights applied to the states by incorporation of the due process clause. so i think it's natural that's the path the court would focus on. >> paul let's go back to you for come stock and -- >> i think come stock is a great segue case. because the incorporation case you can look at it as being an issue about the scope, the practical scope of the second amendment. but obviously increases is at the bottom a federal issue. there's a radical difference in the powers of the state and local governments if the second amendment is incorporated versus it not being incorporated. a case that prevents a more straightforward federalism question is the come stock case which i think is a case that has not got an tremendous amount of attention but i think is a very interesting federalism case. the basic statute at issue here

is a federal effort to deal with sex offenders as they are released from federal custody. it provides for the first time a basis for civil commitment of federal sex offenders as they finish their sentence. now, what seems a little bit unusual about this is generally one this about civil commitment of dangerous people as being a classic state concern. and to make matters kind ofism matter, you are dealing with a situation whose only real nexus to the federal government has just been extinguished. these people are people who are the concern of the federal government largely because they are serving in the federal penitentiary. and it's exactly the point at which they served their commitment to the federal government that federal government comes in and swoops in and provides an additional basis for detention based on something that is a traditional state concern. this struck me as a case that really had the potential, even in a post-race world where the

court had seemed to be fairly forgiving of federal intrusions and not particularly the majority of the court not particularly protective of state prerogatives, this seemed to me to be the case where there was a potential that court would see this in almost in the mode of the lopez gun free school zones where the federal involvement is sort of unusual. it comes in -- the federal nexus is a bit suspect, and that there might be the possibility that court would revive federalism principles a little bit in the comstock case. perhaps because elena did such a wonderful job of the argument, perhaps for a variety of doctrine reasons. my reading of the oral argument this will not be the case that revives federalism. the majority of the court seemed like they were quite defend ex to the federal interest in this case -- recognized a federal role in the case. justice scalia seemed skeptical but he was really the major

voice of skepticism in the case. if you look at mcdonalds and option together and if these end up with an assertion of federal power, either the federal court's power by amending the second amendment -- by saying there is not a federalism concern with the federal government's treatment of sex offenders, i think in the wake of those decisions it's going to be hard for get a great deal of optimism that there's going to be a vindication of state's rights anytime soon by the roberts court at least in these areas of -- putting aside the 11th amendment in specific areas -- but in this particular sort of general power under the commerce clause and the like, i think these decisions if they come out the way that maybe they appear to be headed at argument will make it very hard to be terribly optimistic about the states' chances of prevailing in one of these cases in the immediate future.

i'll just shift gears and talk to the other axis of the separation of powers and the structures of government which is the power -- the division of power among the three branches of the federal government. that issue is front and center in another case that elena argued, the case that i refer to affectionately as the peek-a-boo case. this is the case that challenges the composition and structure of the public accounting oversight board which was created by the sarbanes-oxley act as a way of trying to monitor the public accounting profession. the specific issue in this case that seems to have drawn the most of the court's attention is the so-called double four cause removal provisions. the officers of the peek-a-boo, of the board, are removable for cause by the s.e.c. and the s.e.c. board members themselves are removable for cause by the president, at least by common law understanding. the statute currently actually doesn't say. that but nonetheless, the court's taking this case essentially on the premise that

there is a double for cause removal here. and it seemed like there was at least some sympathy for the idea that the double for cause removal provision interfered with the president's authority to remove individuals and have a robust removal authority. i'll say just two things about the case. as i say it hasn't been decided yet. one is it's interesting to note that although the issue here at some sense is an infringement on the president's authority, and the justice department though it generally makes even good faith arguments in defense of statutes that, rule is generally relaxed in the context of article ii issues and infringements on the president's authority. so this is a situation where you might have expected that the executive branch's lawyers, the solicitor general, would not defend the constitutionality of the act of congress because there's a live allegation that infringes the president's removal authority. nonetheless, both the bush

administration and the obama administration has robustly defended the statute. so it will be interesting if the court ends up with a more rebust view of presidential power than the president's own lawyers in these cases. the second thing that i think is worth watching here is my own view is that if the court does find the statute unconstitutional it's most likely to focus on the double for cause removal provision. that's a provision that may be fixed easily enough. and so there's a sense in which this may be much ado about nothing. i think the interesting thing to watch here is whether or not there are five justices who embraced a fairly formistic view of the separation of powers. i think that would bed headline news here from this decision. there's been a debate going on among justices in the court for decades about whether the approach to separation of powers should be more formalistic, very bright lines, high walls of separation between and among the branches, or whether you should

take a more formalistic view as embraced most i think kind of enthusiastically by justice white. i think this decision might be the first time that you see five very solid votes for a formalistic view of the separation of powers. that may not have big consequences in this case, but i think it may have important consequences going forward. >> quick on separation or federalism of powers. >> mcdonalds for a moment for what it might mean for those of you who are judges, i think the key unanswered question with regard to the second amendment is what's going to be the standard of review? what's going to be the level of scrutiny? in district of columbia versus heller justice scalia said it's more than rational basis review. justice breyer arguinged it should be a rational basis test. a lot of argument was about the standard of review question. if the court gives some guidance there, it's going to matter especially as they define incorporation, a lot of state and local laws that touch upon

firearms become challenged in your courts. i think the comstock case has the possibility of being the real sleeper case of the term. i think when constitutional historians look at the rehnquist court they will say the greatest change ins federal law -- limiting congress under authority section 5 of the 14th amendment, reviving the 10th amendment, greatly expanding state so much immunity. this is the first supreme court case during the roberts era to touch on those issues. as it was briefed by the solicitor general's office the meaning of the necessary and proper clause only touched upon during the rehnquist decisions. interesting in 1977 in kansas versus hendricks the supreme court 5-4 ruled that states could have the indefinite detention of those who were sexually dangerous after they'd committed their sentences -- completed their sentences.

and it was the five conservative justices who upheld the indefinite civil commitment and the four more liberal justices who dissented. now it would seem that it's the more conservative justices who would want to hold the federal -- would want to strike down this federal authority, wanting to narrow the scope of congress' power and the more liberal justices who might want to uphold this, not wanting to narrow congress' power for fear of civil rights laws and environmental laws in jeopardy. so what the court does here could be very important in the whole range of challenges to federal laws. unlike paul, no matter what comes out in this case i don't think this is going to be the last word from the roberts court to federalism nor do i think it's going to close the doors on other federal laws -- those decisions of the rehnquist court were 5-4 with rehnquist, o'connor joined by scalia, kennedy and thomas. scalia, kennedy and thomas remain chief justice roberts and

justice alito are just committed to states rights as were chief justice rehnquist and justice o'connor. finally with respect to the public accountability oversight case, i want to agree with what paul was saying at the very end. some conservatives including on the supreme court have long argued that there should be an unitariry executive. in 1988 when the supreme court upheld the independent counsel law in morris versus olsen, justice scalia was alone in dissent saying that independent counsel law was unconstitutional because the president should be able to remove those who are serving an executive function reporting prosecutorial intent many when samuel alito was a young lawyer in the reagan administration, he wrote memos strongly endorsing this unitary executive philosophy. if there are now five votes on the court to the unitary executive philosophy it could mean a dramatic change in the law. what might it mean for example with how the members of

independent regulatory agencies are chosen and are removable and there could be five votes for that. we'll see when the case comes down. >> at the beginning of this panel, paul calledett which frequently flies under the radar screen even though it's a very substantial part of what the supreme court does. what the solicitor general's office i suspect i spend 40% of my time on criminal cases. and that's reflective in large part of what the supreme court is doing in its docket. this year might be a case in which some criminal cases fly above the radar screen, particularly with respect to the honor services statute. so why don't you talk a little bit about the criminal docket that supreme court started with those cases? >> sure. this involves a part of the 18 united states code section 1346 in the falrod statute.

it was to make crime the intangible right of honor services. what's strike something three separate cases before the court this term that involved that statute. one is a case called wyrak versus the united states. he was a member of the alaska state legislature. he was about to leave office. he applied for jobs. ended up not getting any of those jobs. but he voted in favor of a bill that would have benefited one of the company that is he applied for a job with. he was convicted by casting that vote of violating the honest services. this raises all sorts of issues. does it matter that he didn't actually tangiblely benefit that, he didn't get the job in the end? what exactly does honest services mean in this context? black versus united states, which is argued the same day in the supreme court, involves conrad black who owned a number of newspapers. in selling them he made a deal with one of the subsidiaries of the company for which he was the

executive to get a $5.5 million payment. and it was appreciate of feduciary duty it was argued. there was predating that was going on. he was convicted of violating the honest services statute. his company didn't lose anything that was tangibly measured. can there be a violation of the honest service statute in that context? and the case that's going to get the most attention in all likelihood is skilling versus the united states, jeffrey skilling of course being an executive of the enron company. and his challenge poses many issues. does the honest services statute require that government prove that an individual has a private game rather than something that the employer had gained? must it be a material breach of fiduciary duty? most important the skilling case, unlike the wyrak and black case raises constitutional issues. the most important is the claim that depending on how the courts

interprets the statute it's untutionly vague. justice scalia last year in a dissent expressed grave concerns about the honest services statute and whether it was unconstitutionally vague. and of course if the court were to hold that in skilling they would likely decide black and wyrak as well. so it's possible that all three cases could be decided on statutory grounds but it's possible to also be decided on the vagueness ground. maybe i could mention the fourth amendment case. last term there were a number of important fourth amendment cases. i think the most important was hearing versus the united states which limited the scope of the exclusionary role. it's striking to me this term there's only one major fourth amendment case and it doesn't come up in a criminal context but it's certainly very important with regard to privacy. it's a case called city of antero versus kwan that was argued a week ago monday. jeffrey kwan was a police officer on the swat team in the city of ontario. he was issued by his department

a text pager. and officers were told that they were given a certain number of messages that they could send. also the city of ontario had a policy that when employees including its officers used computers and other electronic equipment, they should have no expectation of privacy with their communication. in fact, the officers had to sign a written agreement they would have no expectation of privacy in using the text pagers equipment. now, the equipment didn't specifically mention text pagers because it was issued before the text pagers came out. but it was fairly broadly written expressly said you have no reasonable expectation of privacy. however, kwan's supervisor, the lieutenant who administered the policy, told the officers so long as they were willing to pay for over messages, overuse, no one would read their messages.

there was another part of the policy that said that the city's equipment should be used only for official business. it said there could be "light personal use" defined as things like setting appointments, and said there could be no sexually explicit messages sent. well, jeffrey kwan sent messages to his wife, his mistress, and other officers in the department, and especially the ones to his mistress were quite sexually explicit. for a couple of months, the lieutenant just let kwan pay for the over messages, the overuse. and then finally the lieutenant got frustrated with this and he turned to the service provider, arch wireless and said "let us see kwan's messages." he read the messages, and that then led to kwan and also his wife and mistress filing lawsuits against the city of ontario for invasion of privacy. the united states court of appeals in the ninth circuit in

an opinion by judge ward kenlaw found in favor of kwan, the wife and the mistress saying they had a reasonable expectation of privacy that was violated. the supreme court granted the cert. there were so many important issues presented here. how is a reasonable expectation of privacy to be determined? can the government eliminate it just by saying have no ream expectation by the privacy? what's the staple of the lieutenant that says i won't read your mess ages so long as you paid for the georges. also in terms of technology, this is the first time that supreme court has dealt with the reasonable expectation of privacy in the context of the new technology. also, what if any is the reasonable expectation of privacy for the wife and the mistress? if an individual sends a communication to someone else by the sending or the giving up all expectation of privacy? or do they continue to have a reasonable expectation of privacy? my reading of the transcript of

the oral argument is that the court was much more sympathetic to the city of ontario than it was to kwan, but then i think the issue will still be how broadly or narrowly do they write the opinions. >> paul, what do you think is going to happen to honest services prosecutions? >> well, i think they're probably going to have to be recalibrated after these decisions. because i do think whether it's unstatutory or constitutional grounds, the honest services statute will not have the breadth at the end of this term that it had at the beginning of this term. i underscore two points about those cases. one is to echo something that irwin said. i think it's fascinating to look back a little over a year to an opinion where justice scalia dissented from the denial of services in that case. he went on for five pages about the concerns about the honest services fraud statute.

somewhat ironically, that case at least in his view encapsulated in a single case all these issues that are before the court in these three cases, whether you need private gain, whether you need an independent violation of state law, and whether the statute is unconstitutional and vagueness grounds. in less than basically a year, it went from a sole dissent from denial of cert to the court granting cert in these three cases. i think it does go to underscore the point i made at the outset, that at least in some areas, not the fourth amendment area that irwin was talk about in the kwan case but in other areas justice scalia really has been a criminal defendant's best friend in some of these areas of the law. and i think his role in the honest services area will perhaps underscore that. the last thing that i'll say just by a word of what would happen at the end of this term if the court does strike down the government's prosecution in these cases this would mean in a single term that supreme court not only ruled for the

corporations and citizens united but also ruled in favor of conrad black and jeffrey skilling. and i do think just to raise really in my own view a word of caution, i think all of those would be decisions that a majority of the court would feel very strongly were moored in the constitution or the statutes, be it the first amendment or the due process clause or the statute itself. yet do i think that we might see something of a kind of populist backlash of the court that we have -- kind of a tenner that we haven't seen recently. i think historically there are many presidents for sort of a popular backlash on the course. but i think the combination of citizens united and rulings in favor of conrad black and jeffrey skilling could unleash something we haven't seen recently. >> so paul, last topic let's talk about the court's business cases this year. >> i'll talk about them just in an overview fashion. i think if you think about the first couple of years of the roberts court, there was a

popular conception that the roberts court was a very probusiness court. and in a couple of different areas, including some of the early pre-emption cases of the roberts court, but also in some securities cases and the like, the court seemingly was ruling in favor of the defendant ins a variety of different contexts. now, my own view was that was a bit too simplistic with painting with too broad a brush that you had to really drill down before you could find some more meaningful trends. i do think if you drill down there are some interesting trends though i think this may be the term that some of those trends get reversed. let me point to two interesting trends. first in the area of antitrust cases, by my count the roberts court has had before this term eight antitrust cases. what is strike something that in those eight antitrust cases the antitrust plaintiff has lost in all eight cases. even more striking, in the main

with really only one exception these have not been 5-4 cases. the court has almost unanimously or with only one or two dissents been ruling in favor of the antitrust defendant and against the antitrust purchas. so in these eight antitrust cases there have been nine votes total for the antitrust plaintiff. and four of those came in a single case. so these have been lop-sided case ins favor of the antitrust plaintiff. -- against the antitrust plaintiff. this term the court has a case called american needle which addresses whether or not the nfl is a single entity for certain purposes. i have to say i have some skepticism of that claim if only because as a lifelong packers fan i don't -- i don't think a minnesota vikings jersey and a green bay packer jersey are close substitutes. [laughter] >> i'm not really interested in the vikings jer circumstances particularly one with the number 4 on the back. [laughter] >> so i think this is a case

where the antitrust defendants claim that they're a single entity to which the antitrust laws do not attach robustly is going to run into some skepticism and maybe the first case in the roberts court where the roberts court rule ins favor of the antitrust plaintiff. another case, series of cases where you see a real trend is in the patent area. and the trend here is that the court has been cutting back on patent protection but even more obviously has not been terribly defend ex about the one federal court of appeals that specialize ins patent cases, namely the federal circuit. by my count here you have seven patent cases before this term in the supreme court. in those cases there were two recusals. so across seven patent cases there were 61 total votes that court had. in those cases, collectively, the vote to reverse was 59-2. so in seven patent cases the federal circuit got exactly two

votes to affirm. so the supreme court when it's looked at and taken cases out of the federal circuit has not been defend ex to their ex per cease in patent and has taken a decidedly different view of the underlying issues. that too may change this term because the court has a very important patent case in front of it, the bilsky case, involving the scope of business method patents. and the federal circuit in this case both cut back on the scope of business method patents and rejected the particular patent at issue in this case. based on my read of the oral argument transcript, it seems very likely that supreme court will come to the same disposition. so for the first time in the roberts court will affirm the federal circuit in a patent case. it may come up with a slightly different formulation. but i think the general direction of it which will be to cut back on business method patents will be similar to the orientation that federal circuit took in this case. so i think in these two areas

we're likely to see something of at least temporary reversal of what's been a pretty distinct trend. the last cases i'll talk about very briefly are in the securities areas. the court had four securities cases on its docket this term which compares to five securities case ins the whole rest of the roberts term -- court. so this is an area where the court has really kind of taken a bunch of cases this term. in the two cases that i've focused on so far that have come jones case the merck case and jones case, in both cases the court has ruled in favor of the securities plaintiff and has done so unanimously in both cases. in the merck case there are difference ins reasoning and analysis, but the bottom line is both cases 9-0 rulings in favor of the securities plaintiff. so i think that these cases while surely not proving that roberts court is a hostile court to business, go a long way to showing that you can't paint with too broad a brush and that it really depends about the specific nature of the issue before the court.

at the end of the day, most business cases are statutory interpretation cases. and so the result in these cases is probably going to have more to do with the business orientation of this congress that passed the statute than the business orientation of the supreme court that decides the case. >> so irwin? >> just real briefly, i think what's most notable is the increasing number of business cases on the docket. because you've already talked about antitrust patent securities. there are several bankruptcy cases on the docket this term whereas for many years the court wasn't hearing bankruptcy cases. and i think this is a reflection of john roberts as chief justice, that i think he spend most of his career before going onto the supreme court as a lawyer representing business interests before the supreme court. and i think this is a court that is much more interested in antitrust patent securities and bankruptcy than say the rehnquist court was before it. >> we do have some time for a few questions. yes, sir. >> i'd like to ask irwin about

-- [inaudible] in the absence of ofs system united decision, an incorporation called general electric says [inaudible] an inch corporation called "washington post" can spend millions on paper and magazines but the [inaudible] corporation can't spend a couple thousand on billboards or [inaudible] how would you [inaudible] >> thank you, judge buyer, for the question. [laughter] >> i think the question is what weight do you give to the word "press" in the first amendment? and do you believe that in order to be able to have free press there's an ability of the press to be able to have a television station that editorializes or a newspaper that editorializes.

and does it mean that because we're going to protect press that that then means that every corporation should have free speech rights? when the supreme court in austin said that corporate spending on election campaigns were restrengthed, the court gave two primary reasons. one was the concern over the distorting of facts of corporate wealth in election campaigns, and the other was protecting shareholders, that there's a concern that shareholders might have their resources used to advance beliefs they don't have. that concern is obviously much less with regard to media corporations when it comes to the shareholders because they obviously know that owning stock in a media corporation than with other corporations if you own general motors stock that doesn't mean that's going to be necessarily used for political views. but the bottom line i think comes down to the press clause. >> other questions? yes. >> a question on how the court

decides their cases. [inaudible] salazar all the way to washington, and the p.l.s. case there's a dispute about factual records used in [inaudible] >> well, let me say one thing about it which is you're right to point out a couple ofs cases where maybe in retrospect it looked like the particular vehicle the court had chosen to take a case was not optimal. there were some what we affectionately refer to as vehicle problems with a particular case.

..

and there were all the incentives that were in case of doubt, recommend the 9 pin from the court's perspective, it comes into oblivion. it is under a microscope and all of these little defects can be revealed. with justice stevens's impending retirement, just as a leader was not a member of the pool. -- justice alito is not a member of the pool. on balance, having more -- the circuit pool has its role, but having at least two justices, it would be nice to have two

justices that would not necessarily agree on everything. it would have an effect on the selection process. >> [unintelligible] >> it is a requirement that eeoc charges be filed to avoid unlawful discrimination. when does the statue of eliminations -- one is the statute of limitations -- when

does the statue limitations commission on this? this city divided the applicants into three groups, well qualified, qualified, and not qualified. the lawsuit was filed 340 days after the test results were announced. but it was 181 days after the second time the test results were used. if you said that it has to be within 350 days of the time they were announced, it is not permissible. how do you determine when statute of limitations run? in terms of discriminatory impact clinton book title 7, that is the issue in the case. ->> how did you read the argument? >> i think it is really hard to

read that argument. it is one that is really hard to call. there is a key difference in the argument. in ledbetter, she realistically could not have filed a discrimination claim because she did not know what the salaries of the other employees were. several justices saw that they could have brought to the challenges after the results were announced. since it was known, it could have been brought in earlier. but it is hard to read the argument. >> i think the court really did see this as a different case from ledbetter. i think they were wrestling with the difference between disparate impact and disparate treatment. when you think about title 7, you instinctively think that disparate treatment is the worst thing that could happen and could happen.act i

if the court says that the statute of limitation has not run, it would be easier to bring a disparate impact claim that the disparate treatment claim. to put it in real terms, if lee ledbetter had sued and said that she was not subject to disparate treatment back in the day, but subjected to a disparate policy back in the day that continue to have the current defect, there is a statutory argument that she could have brought to the disparate impact claim, but not the disparate treatment claim. there's something that seems counterintuitive about that. >> let me ask the to be one final question. -- let me ask the two of you one final question. [laughter]

or you could not answer that. [laughter] >> i will go first because somebody has to. i do not know that there will be a big surprise. there is not where i am thinking that there will be a counterintuitive result. i will answer a slightly different question. of all the cases that will come down, i think that the honor services case will be the cases that will be the most interesting. if the court says that there are constitutional limits on the honor services statute, that will have a very big impact. i know very well how much the federal government revised -- you and i know very well how much the federal government relies on the honor system. that is a very close race to watch. >> the solicitors office, it -- the solicitor general's office, we are very interested in this. this is a 3-case term.

>> the only thing i would add to that is that, in the public accountability oversight, that could be incredibly important. those could be the sleeper cases of the term. >> you can see why they are viewed by everybody as two of the greatest experts on the supreme court. , erwinou chemerinsky and paul clement. [applause]

>> solicitor general indicate in was on capitol hill to meet with several senators -- solicitor kagan waslena qaedand on capitol hill to meet with several senators.

>> ms. kagan and i will meet one on one after all of you have left. we will talk about that after. thank you. i think they are important, though. [laughter] >> do you think they are important, ma'am? [laughter] >> you know that we are going to

have hearings. >> thank you, everybody. >> the good work. >> no running. there is no need to run. nice and orderly.

>> we're glad you're here. thank you for coming by and thank you, some consider general kaydin -- solicitor general .aydikagan we would like to chat one-on-one and we will talk about some personal things and some little things. she will have some questions about how we will conduct the process. i will commit to you what i told the president. it will be a fair process and it will be completed, as he requested, as soon as possible, if things go well. i am glad to have you in the

senate office building. >> [unintelligible] >> i think there are important. it gives us an opportunity to see the human being behind the print and the media and the tv hype that is out there. i look forward to it. i think it does help. >> [unintelligible] thanknk you're a body -- you, everybody. >> thank you. >> we have a delightful conversation with miss kaydin, the solicitor general. -- with ms. kagan, the solicitor general. i enjoyed my time with their.

-- with her. i have not gotten to know her before this. we will have a fair and rigorous hearing. we will inquiry into the nominee and, in the end, make a good decision over whether or not they should be confirmed. i told her that i have committed to president obama that we will do our best to complete this process as soon as possible. it is not as long as a lot of people think. there could be disruptions or unexpected developments. we will do our best to complete the process is a fair way. i think it is important and i shared with her that a judge

must understand the significant disparities in law and that laws are not above the constitution. many feel they have the power based on changing circumstances in the world and they can redefine the meaning of the constitutional law. every day, people [unintelligible] if they have the view that the courts are not faithful to the long, that those courts are somehow imposing their political, social overview on american people, then the whole system is in jeopardy. i think she indicated that she understood that. she does come out of a tradition of activist judges and

well respected judges -- and well-respected digits. we talked about that little bit. well-respected and judges. we talked about that a little bit. >> what is your impression? >> she made to the point first when talking about her background and where she grew up. i think it is more an important how they think, how they rule, whether they can be objective as

a judge. >> senator -- >> [unintelligible] >> we talked about that. i shared with her some of my concerns about that. she responded to it. >> bitchy -- did she [unintelligible] >> i think perhaps i am unfair this point. it seemed out of touch, that you could disagree with the legal policy of the military and that would allow you the ability to

come to [unintelligible] i think we indicated some of the rarified dangers of being in the academy. >> it sounds like you have some concerns even after she told you about her views about the military. >> i think that the harvard military issue was a big mistake. i have said that before. [unintelligible] so i have some history of that. also, encouragingly military [unintelligible] >> you have also said that you are concerned about because she is coming from the obama administration and could be a rubber stamp to policy. did you talked to her about that?

>> yes. a nominee that comes from any background -- but she has been politically active throughout her life. she has identified with the american liberal position. ed for two activist judges. i asked her if she understood that, as a dead, she may be called upon to amend the rulings. [unintelligible] she indicated that she did. she indicated that she would be faithful to the law. but every nominee does that.

more activist and judges have said that. and they believe, when they are judging, that they are doing that. >> do you think that the committee will request documents from her time as a clinton aide and get them before the committee? >> i think all the documents that are reproducible should be produced. she has no judicial record. she has a very small actual record as a practicing lawyer. i think the american people are entitled to know what kind of position she took and what kind of issues she was involved in during her time of public service. >> what about her lack of experience? >> in my view, her experience is very thin could you do not have to be a judge previous to be

going on the supreme court. i woulde not a judge, like to see somebody practice of the law for a number of years and demonstrate discipline. >> [unintelligible] >> we down surrounded a little bit. she indicated that she had expected do the job and did not hesitate in that answer. >> [unintelligible] [laughter] did you tell her that? >> no, i did not say that. new york is a great place. but there are other places in the nation, too. there are other universities and harvard is a great university. so it is pretty unusual. i never thought about it really

until today. >> [unintelligible] >> we just talked about a lot of things. it was a nice conversation. it was not one in which i was cross-examining her or demanding a commitment from her on this or that issue. it was more for me to have a better perspective on where she saw her role. >> you're looking for [unintelligible] + area [unintelligible] -- what area [unintelligible] what area would you then look for that would help you [unintelligible] >> if you do not have a lot of experience or practice, which you look for any nominee, you look for a legal record, good judgment, some demonstration

that the nominee understands the need to show fidelity to the law and integrity. this is really good, very important. and a lot of people are good people, but they do not have the kind of intellectual consistency that i think is a form of integrity. those the kinds of things we will be looking at. >> [unintelligible] >> i cannot say exactly when other areas at this point that i would be concerned with. i would like to know more about her judgment.

that is what you select a judge for, and judgment. >> [inaudible] >> i do not -- i hope we do not do the hearings toussaint. -- i hope we do not do the hearings to soon. it would be unsatisfactory of the hearings occurred before [unintelligible] icu knollwood need to rush. -- i see no need to rush. then you have to go well beyond that to [unintelligible] >> [unintelligible]

>> yes, i think that is good. [unintelligible] >> were there any areas of disagreement in your conversation, in your meeting? >> we talked about a number of things, of the military, some other issues. she explained and i mean that have fully agreed in the end. >> what would you say is your biggest area of concern with her? >> fundamentally, we need a judge who will be faithful to

the constitution. i do not want a judge to promote my agenda on the supreme court. i also do not want a judge on the court to promote the political agenda of the president. if they had understand the difference between politics and law -- and a lot of the president's comments on judges and what he looks for is clear, law and politics. the president was not so much concerned with process, but results. his "results-oriented." this is not law. i do not know what this is. i do not think he is a lawyer. these are the kinds of things that we want to make sure we have a judge who understands that they have a judicial role and not a policy role and must

be faithful to the law. when your not, you erode public confidence. >> thank you.

>> it is a piece of art, really. >> it is beautiful. >> thank you, guys very much -- thank you, guys, very much.

>> elaine kaydin was on capitol hill today where she continued her busy eliminate kagan was down capitol hill today where she continued: -- elena kagan was on capitol hill today when she continued her meetings with senators.

>> they say, how can you leave from brooklyn and be a yankees fan? [unintelligible] i will tell you one story that relates to use. in 1967, the cardinals were playing the red sox for the world series. i could not get a ticket to fenway park. >> thank you. thank you. >> i said,, father.

-- i said, call my father. you can get your ticket for $47. [unintelligible] >> thank you. >> in the first steny, lou brock, cardinals, -- in the first inning, lou brock, cardinals [unintelligible] >> fourth floor.

>> my concern is that the supreme court justices are way up in that ivory tower and do not understand the consequences of their decisions on government and on people. i have no doubt that his clinic kagan will understand that and understand it -- that elena kagan will understand that and understand it completely. people ask what kind of practical experience does she have? she ran a business. harvard law school had a budget of $160 million. it had 500 people. it was like a legal factory and she ran it with some many different factions and some

egos and she made it into a well-running and smooth business. my daughter was that deal law school and she said that one of the reasons she hopes that in linen kagan gets nominated is because she is recruiting him -- that elaine a cake and gets nominated is because she is recruiting all of -- that the qaedelena kagan gets nominateds because she is recruiting all of their best people. she is a moderate, which is one criteria could i do not like them too far right and too far left. i do believe that she is a moderate. i think that the wants and strength of her personality will meet the criteria that the president laid out.

she is very likely to be one of five votes, not one of four votes. that is perhaps one of the most important criteria for the next several years. >> republicans are making comparisons with her and margot myers. -- and harriet myers. >> she did not have legal activism when i asked her neck -- activism. when i asked her a question about something that on the supreme court would have done so with second nature, she did not have an answer. elena kagan did not do that. if you had to pick practical

experience that would help you be a good supreme court justice, running a large law school is probably a pretty good one. you have to meet a budget. you have to bring people together. you have to practice the best of your decisions. >> she actually brought up the fact that, if she is confirmed, there will be four new yorkers on the court. he said that would be too much. what is your reaction? >> quality of people, that should be the primary thing, not where they come from. in new york, we have a lot of quality people. >> [unintelligible] >> i talked about some of those issues and her answers were thoughtful. we mainly talked about who she was and where she comes from an

d with the area of being a justice. >> [unintelligible] >> are we faced with the supreme court, everybody? >> yes. >> did you discuss the nominees in front of the judiciary committee? >> yes. >> did she criticize any of the sitting judges? >> she did not. i told, for instance, when miguel estrada, if you asked him if the sky was blue, he said he could not answer that ibecause a case could get by me and i would be jeopardized and that appeared you cannot do that -- jeopardize that.

you cannot do that. >> she has some issues possibly with some hard decisions at harvard. >> i am not going to get into the specifics. >> [unintelligible] can you talk about the possible problem at harvard with her hiring practices. can you talk about that? >> no. >> the white house says they are cutting funding [unintelligible] >> i have spoken with rahm emanuel and attorney-general holder this morning this about . first, 11% of the transit anti- terror funding, we get far more of the 11% of the threat.

we seem to be 75% to 100% on target. in terms of the view that new york got a lot of money from the stimulus bill, that is true. that was last year and the threats have increased. over last four months, we have seen a new group that is clearly targeting u.s. citizens and targeting new york. there is the pakistani taliban. they came all too close. the old formulas do not work. one thing i suggested to the white house is that they could make up a part of this with the largest anti-terror money that would be allocated next month. there's no question in my mind that, given the level of terrorism threats, new york does not get its fair share on a percentage basis or the amount that we should get in terms of

all the things we have to do to protect our citizens. >> [unintelligible] >> they are looking at the was the -- at the uazi. >> [unintelligible] >> it is unfair to blame this on the president. these budget numbers were probably put in place in december and january before all of the new information that has come about has. but i do say that, both that omb and homeland security, they should have seen this and caught it. my hope is that the present -- no one can doubt his 74 new york and his understanding of the debt that we are under. -- no one can doubt his sympathy for a new york and his understanding of the threat that we are in there.

thank you, everybody. >> i may be cutting its in little early. >> [unintelligible] >> [unintelligible]

>> that was the first question i asked her, the concerns about the position of privilege. she answered it very honestly. she is supportive of the men and women who are fighting to protect us and supportive of the military as a whole. i do not feel her judicial philosophy will be hurting the men and women who served. clark's [unintelligible] -- >> [unintelligible] >> i am not sure who is introducing her. i am waiting for [unintelligible]

i am looking forward to it being fair and open and respectful. those are my three top priorities. i am one to learn about her. there is not much then you can do -- there's not much of that you can do in a three-minute meeting. >> thank you, senator brown. we have to go to vote. thank you. >> have you been briefed all [unintelligible] >> supreme court nominee elena kagan is meeting with senators. learn more about the process and the nation's highest court in c- span's latest book. it provides unique insights about the court, available in hardcover, and also as an e- book. >> on monday, there will be

campaign rallies. there will be a republican rally for timber and is -- for tandem burns. -- for tim burns. >> tonight, the date on the gulf of mexico oil spill. -- tonight, an update on the gulf of mexico oil spill. there will be a senate hearing on the human space flight program. interior secretary can salazar speaks on the gulf of mexico oil spill. this is 20 minutes.

we have been on this problem for 25 days. there are many different fronts on this battle. we are fighting them on all fronts. we are resolute in our effort to do everything we can to bring this problem under control. tomorrow, in the afternoon, with secretary to, we will be pulling chu,ther -- with secretary t we will be pulling together. along with the department of energy and the united states geological survey, all of whom have been focused on this issue with the command center in houston, it gives us hope that we will be able to make sure that whatever options chosen to kill the swell will in fact work.

we're looking ford to having that done tomorrow. today, i was in louisiana, fortune jackson, the wildlife rehabilitation center. -- fort jackson, the wildlife rehabilitation center. i wanted to see the wildlife resources. the department of interior has s. wildlife refuge' we have a responsibility to make sure that we're doing everything we can to protect the valuable ecological resources of the gulf coast. we will continue to do everything we can, using every ounce of effort that we have in the department of the interior on this issue. we are part of the federal family and we are proud of the fact that secretary napolitano

and admiral palin and so many federal faculty have come together -- admiral alan and so many federal faculty have come together. we feel the pain. we are frustrated. we want to make sure that, at the end of the day, no stone is left unturned on this matter. >> thank you, secretary salazar appeared on behalf of everyone at the this command post, we thank you for your leadership. we have felt the support since day one. we thank you for the leadership and the hard work that is going on at the national level. we understand the tremendous work that is going on here and the communities that are the front line, those that are affected.

it has been a real tame effort -- team effort. we have had good weather. we have had weather that has allowed us to fight this offshore. we are very focused on securing the store. as we fight this offshore, we have had good success until now have a minimal impact to the shoreline and the beaches and the wildlife. but there are fishermen who are out of work right now. narrett commitment is to mitigate the environmental -- our commitment is to mitigate the environmental impact. we want to thank everyone for their efforts in analyzing the three tests that we did prior to this decision.

we did not cross the structural likely to employ this tool. it will be analyzed and monitored. it has a very strict monitoring protocol in place. we have other tools as well. obviously, there are controlled by laurence and scamming on the surface. -- controlled burns and skimming on the surface. i want to thank the administrative epa who engaged the committee before we crossed of this threshold. they had a wonderful dialogue and made themselves available so that we could allay concerns that this is not something we stepped into lightly. i also want to mention the fisheries service's. they are really trying to

mitigate and minimize the impact from the three recreational and commercial fishermen and they're trying to do the best they can to see what is out there. we will keep you apprised of that. we're very committed to coming to a conclusion on this and bringing this to resolution. we will not rest because we know how much the american people and the south coast residents rely on us to bring this to closure. thank you. >> thank you, secretary salazar and admiral landry. i spent 1 1/2 hours flying over the scene. it appears that the application of the subsea dispersal is working. the oil in the immediate vicinity of the well and the

ships and raise working together have diminished from previous igs aretions -- and rea working together and have diminished from previous observations. we are 23 days since the release began. we have had very little impact to shore, partly due to our efforts and partly due to mother nature. we are in the process of running the riser in assertion to the. this is the method to contain the flow. if it does not stop the flow, but it contains the flow. the relief activity continues.

the drilling of the first relief well is on day 3. we should resume drilling over the next two days. the ddt 2 well should resume tomorrow. currently, unfortunately, the weather is not conducive to skimming or burning operations. we will have to use olvera tools over the balance of next week. we continue -- use all of our tools are the balance of next week. we have somewhere around 38 .ircraft's

it is involving various states and members of the federal [unintelligible] it is making as have some success. thank you. >> we will go ahead and take questions. >> mr. suttles, do you think there were prior problems with the cement job on the deep water horizon? have you done any independent testing to verify whether or not the job had problems or was done correctly? >> actually, my only role in this, which i started working on two hours after it began, was to deal with the response. i am not involved in the investigation activities. i am not in a place to deal to comment on that. -- to be able to comment on that.

>> gov. jindal has expressed concerns that there has been a lot of attention paid to for the oil is on the surface, what we can see. how much do we know about where the soil under water is? are we just waiting for it to wash up on shore to see where it is? do we expect to see more tar balls coming onshore? what is the plan for that? >> i will let at landry address that in just a minute. let me express to you the concerns of the president of the united states. we want to be transparent. the nation requires that of the spirit it is a difficult thing to measure. -- that of us. it is a difficult thing to measure.

whenever information that we have, as the government, we want -- whatever information we have, as the government, we want to make it available. >> we are working very closely with governor jindal and his staff. certainly, we have visuals on well that was dispersed and sitting about 18 inches below the water column. retract that for how it would come on shore. we are -- we tracked that for how it would come on shore. we have teams runway ready to respond to that and clean that up. we are also tried to communicate with everybody. we have taken information that we knew about the oil and are trying to translated into pictures that we have received. we are displaying those pictures on the website and explaining the cleanup. we have a pretty good handle on

the oil we are dealing with. we are tracking it constantly. i would refer people to the website to take a look. we will communicate this to all of the gulf coast residents as well, through their states, through their counties, through their parishes, so that everyone has an understanding of the state of the oil. they have not got enough information. we will disburse this information and continue to do that to allay people's concerns. the idea that there is looming in a large amount of oil is not the case. >> i have a question about the dispersants. how much was in store already that you have been able to use.

have you put in an order for more? there are many people who believe that there are less toxic and more environmentally-friendly ways to do this. people are wondering why you have not bought those. >> let me start explaining what these disbursements to do. the intent is to break the oil into much smaller droplets. then that allows the natural degradation process -- the microbes in the water actually eat to the soil. that is why you use dispersants, to break them up into much smaller pieces and let the natural process to be accelerated. we also have a second product called cbrat 4. we have to understand that we

have to supply these insufficient quantities. the good news about using it subsea is that we can use considerably less dispersants than if we had to apply it to the surface. it works, as we have seen in the test. there's much less oil on the surface. that means that the amount of dispersants we use will drop significantly. >> it is important also to understand that these are part of the equipment list that has been approved by the federal government and the states through their general response teams and their natural response teams. there was approval for this ahead of time. this is not done just by willy- nilly. it has been analyzed and studied as to what the potential impact can be. as far as new opportunities for products that people are coming forward with, we're trying to

actively engage with those offers. this is an opportunity for us to do more study and analysis. we have set a team for that. with scienceng labs and take a look at these new technologies. .

>> my understanding was that there isn't an effort to put to the insertion to. -- there is an effort to put to the insertion tube. i just wanted to comment on how this thing is being looked at from our perspective. these are old mitigation measures. we are trying to stop the leak as soon as possible the second is, we will like to stop this from flowing.

third will be to help -- that will not be done until august. all of our efforts that are under way with the global community to look at these different -- overseeing by the group of the smartest people on the planet. the steps that are being taken are the appropriate steps that are being put in. >> thank you for the question. what happened when you tried to put the insertion down there? >> every morning, we get an update on what exactly is going

on. we have this underway number of different ways. this reflects the reality of the conditions which are very difficult and this puts in the mechanisms that they are trying to put in. this is the first effort on the insertion that did not work. >> thank you. the challenge here is working in this depth of water. this tube is in a metal frame so that the drill pipe from the enterprise can connect to it. what they had to do was bring before frame and the tool back

and reorient the frame so the next attempt would be more successful. these are now back on the seabed. >> >> you mentioned how difficult it is to work 5,000 feet below the surface. there is a temperature problem or a pressure problem that has caused this? >> actually, it was just a mechanical -- trying to get to this type. you can imagine trying to do that. once we insert the tool's into

the pipe, the reason we are using this technique is that we won't have the same problem as the previous time. >> thank you, everyone. that concludes our press conference. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] >> coming up, the annual peace officeers' memorial service. also another chance to see the update on the gulf of mexico oil spill. tomorrow, a look at the economy and the role that president obama may play in the 2010

campaigns with a democratic and republican strategist. following that, a look at upcoming senate and house primary races with several reporters and a political professor. this is live at 7:00 a.m. eastern here on c-span. monday, campaign rallies for the 12 conditional district candidate. and rally for tim burns with scott brown in washington. that is monday at 8:00 p.m. eastern on c-span. president obama honored law enforcement officers killed in the line of duty. the event featured a musical performance and leaders of the fraternal order of police and the of sillery. this is 40 minutes.

>> as we gather here with the sport of our president and along with the other leaders, family, friends, we pay tribute to our fallen heroes. help us to see your greatness and glory. may your loved radiate through us to every family. k baumay god bless you. made all the people praise you. amen. please be seated.

>> friends, dignitaries, it is my honor to welcome you to the national peace officers memorial service. i would like to began introducing our keynote speaker, the president of the united states, barack obama. [applause] president obama made his commitment to law enforcement and public safety within days of not getting into office. he moved quickly to get funding for our state and local departments to retain and hire new law enforcement officers at a time when overseas deployments were leading to reduced numbers of officers.

president obama led the charge to secure more than $4 billion in federal funds for local and state law enforcement agencies. this budget has a renewed commitment to the nation's most successful anti-crime programs, most importantly that done by a the police and services operations. he sent a letter asking for an additional billion dollars to be used by state and local governments by firefighters and state and local officers. he has and has continued to be remarkably open and have sought and received our input for many of his important law enforcement posts. president obama has shown

himself to be a partner for the rank-and-file officers. brothers and sisters, family, distinguished guest, please help me welcome the president of the united states, barack obama. [applause] >> thank you. thank you for that warm introduction. i want to commend the police and all of leaders of the work they have done on behalf of the peace officers. we also recognize the of sillery president and members of congress and my administration including --

to the survivors of law enforcement officers. husbands and wives, mothers and fathers, you protect us all. thank you for the service you are rendering to our nation. thank you for the service that you have made on behalf of our people. families. but the lives, they wake up, they go for breakfast, they send their kids off for school, they head into the office or the factory floor and afterwards they returned home ready to do it again.

we know of course that some things can change overnight. we rely on a certain order without being the victims of crime. this sense of security does not, the sun. what makes it possible, what makes freedom possible if the law enforcement officers that we honored today and the men and women such as you. for anyone who has put on a uniform in the name of law, order, protecting and defending the united states of america. what led you to live such a life?

part of this what leads any of us to pursue a profession, our responsibility to provide our families with a better life. there is also a family legacy, a proud it inheritance. there's also another reason, a higher cost for the men and women that are called to be peace officers. a call to live and live and serve others. this is a calling that carries a man's risk. you don't know what dangers you will confront each time you put on that uniform. you don't know what the next day will bring. all you know is your duty.

it is a duty that you fulfil every single day. today we honor americans who lost the lives in pursuit of that duty, in pursuit of that calling. we honor one of the traffic sargents, a 17-year veteran of the oakland police department. this is the kind of guy you can count on for getting you to do the right thing. he was killed on march, 2009 on a traffic stop. he leaves behind his wife, angela, and three children. we honor mark lopez.

need delayed serving a minor and mort. he could -- for his family. we honor trooper miller, a veteran of the pennsylvania state police and the u.s. marine corps. the only thing he likes more than stopping drunk drivers was spending time with his wife, angela, and his three daughters. he was killed on february 7, 2009. we honor each americans and each

of a law enforcement officers who lost their lives in the duty. each is loved, peaches missed -- each is missed. one deputy was shot investigating a disturbance at a pub in 1792. such sacrifice is what makes it possible for us to go on about our lives and to join our freedom. guarding over this park are four bronze lions. they are from the book of proverbs. "the wicked flee when no man pursues them but the righteous are as bold as a lion."

they got watch over those that guard us still pinned dow. made a watch over the united states of america. -- made a watch over the united states of america. -- may they watch over the united states of america. [applause]

♪ ♪

♪ [applause] ♪

>> i like to thank the president of the nine states for his inspiring words. now i would like to take an opportunity to introduce a few of our distinguished guest. sitting on my right, we have a representative of one of the most valuable corporate partners, the chief financial officer of miller coors.

earlier today, he said to the president's award on behalf of miller coursors. it is a distinct pleasure to introduce a special guest, the incredibly talented leanne womack. i would also like to introduce -- he has attended many of these events and he was one of the first sponsors. we thank you for coming. everyone can be seated. president harry truman

commenting on the state of the country at the end of the second world war said "this is the hour to rededicate ourselves to the faith in mankind that makes a stronus strong." as we come together to show our respect and adulation and our support for our brothers and sisters who laid their lives on the line and they helped to pave the way for our great nation. we continue the promise that we will never forget the sacrifices, we will never forsake the families of our heroes, we will never allow the citizens of our nation to forward to get the long term

community. we desire a safe place to raise our families. we are willing to do whatever it takes to fulfill the american dream. at this 29th more of service, we are honoring the lowest number of fallen soldiers in many years. some people wore badges, son were stars. they chose to do a job that will never make them rich, might cause them physical ailment, and in most cases they work overtime just to provide for their families. they know that their jobs are honorable and indispensable.

only those who have suffered the loss of a father or a mother, a sister, a child, or a co-worker all know the sacrifices. that is why we will continue to dedicate ourselves to make sure that our nation will never forget of the heroes beyond today. this country was founded and built on people with dreams and the courage to take great risks. these are words that most officers downplay in their careers. many of them are the last one to talk about it and they almost always said they did what they had to do. they are usually embarrassed by all of the alkylatecelebrations.

we are supposed to flee danger is not run towards them. it takes a special breed to fight your nature and run to trouble. we will never forget the heroes and allow them to follow their dreams. god bless you, the families of our falling brothers and sisters. >> i am proud to introduce we and womac --

leanne womack. ♪ >> ♪ i hope that you will never lose your sense of wonder if you'll always get your fill to eat but always keep that under, may never take once and will press

for granted, the forbidden love ever leave you empty-handed ♪ ♪

♪ there is a god there is a god how much proof do you need? science says it's all just circumstance like boss whole world is just an

accident, but if you want to shoot that theory down, just look around ♪ there is a god there is a god there is a god thehow much proof do you need? oh, there is a god there is a god there is a god how much proof do you need? ♪

[applause] >> thank you. i would like to ask -- of the drugs hillary to approach the podium for her opening statements and welcome to this memorial service. >> members of congress, brothers and sisters of law enforcement and honored guests, welcome to the 29th annual fraternal order of police memorial service. i am the national president of the grand lodge of the fraternal order of police of salary. on this special occasion, we gather together to honor and pay

tribute for the supreme sacrifice these men and women of law enforcement take. they did this with bally, devotion, our officers stand watch fulfilling their duties with courage and commitment. they have put themselves in harm's way working tirelessly exemplifying their commitment to justice. fighting crime, violence, and terrorism for their communities and our country. from the first cell does held here 25 years ago, the fraternal order of police and of sillery continued to harbor the responsibilities to make this service special for moms and dads, husbands and wives, brothers, sisters, sons and daughters, who are here to honor these brave public servants who have given the supreme sacrifice.

25 years ago, i attended my first memorial service, each year, there is a list of names of heroes in our program. we made changes to the service but the one thing that never changes is the paying in the hearts of those in attendance because of the price that their loved ones paid. we learned their stories of how the officers died, we see your pain and we hear your crying and we see the many co-workers who along with you are trying to cope without a loved ones who made this trip necessary. a hero is a person who in the opinion of others as distinguished courage and has performed a heroic acts. i find that there is over 1000 websites that qualify a hero.

i have selected these five essential qualities -- surface, conviction, selflessness, bravery and sacrifice. these qualities i believe to be a powerful character trait of those that we honor here today. each of you wearing a name badge or a ribbon identifies you as a surviving family member for corkers trying to except that life must go on. you are surrounded here by thousands who share in your grief. most importantly, we offer support to u.n. your family's. when an officer dies, we are informed across the nation that we have lost one of our own. there is an ache in the hearts

of others but the thin blue line stretches across the u.s. supporting and offering prayer. strangers will line the streets waving flags. law enforcement is a respected profession. one officer dies, thousands more -- to serve and protect. i share with you a poem entitled -- "like the officers in a television show or the sheriff in the wild west to shoot their foe the officers' shoes to work for a greater good and they stand tall. each day, they have to do is to

fulfil. when the call goes out that one of them is down, with loyalty and amazing speed, the fraternity will gather around. they protect us from ourselves, they protect us from each other. no finer service can be performed bantustan in harm's way for another. it is impossible for us to understand a loss that you have suffered. we hope that you will feel love and prayers being offered to honor your loved ones. our model is to never let them walk alone. i believe that love prevails, tears clans, and memories comfort. our hope is that each of you this week and today except the

open arms of the fraternal order of police and of hillary for the supreme sacrifice paid by your loved ones. may god bless you, god bless our military men and women serving, and may god bless each of you who did they continue to serve our law enforcement. thank you. [applause] >>

>> ♪ the realization of their sacrifice this will bring this humble person to their knees

they gave their lives and i will soon not forget. when we see -- give vent and the price began to play ♪ they might be gone but not forgotten they live in me and you. we lean on the fallen. yes, we lean on the fallen.

i think of all the friends and family is left behind we need to think of how they lived instead of how they died i get to hear the voice of god. -- we lean on the fallen because

they stood for honor and truth they might be gone but not forgotten. they're living in me and you. we lean on the fallen. yes, we lean on the fallen learn from mistakes made in the past each time we go to work, maybe i'll learn

made those heroes lived forever through you and i we all -- the thin blue line for all the times that used stood watch for those who never knew know that god is always watching over you god is always watching over you we lean on the fallen

they might be gone but not forgotten we lean on the fallen yeah, we lean on the fallen ♪ [applause]

[captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] >> coming up, a senate hearing on the future of human space flight. then a press conference with the interior secretary on the gulf oil spill. >> monday, -- with former president clinton in johnston, pennsylvania. then scott brown. >> watch this week's hearings on the gulf of mexico oil spill. a look back at the exxon valdez hearings from 1989. the new library, over one had a 60,000 hours of c-span programming.

>> the first and last men to walk on the moon testified in this hearing about the future of human space flight programs. neil armstrong is joined by the former lockheed martin chairman. they called the latest budget "a blueprint for a vision to know whenowhere." [inaudible conversations] >> this hearing will come to order. a word space program is clearly at a turning point, and earlier

this year the obama administration chartered a new course the to the been working on fora long time. and i know there is a lot of uncertainty and a disagreement and all kind of things about that. particularly when it comes to propose plans for human space flight. this hearing isn important opportunity to take a close look at those plans and others. i said before in this committee and i would address it direcly with of the administrator rowland the during his confirmation i believe for my personal point of view we need a new direction. to many including myself, defenders of the status quo for nasa be there many or few seem to justify the view solely based on job impact. i don't think we can afford to do that. jobs in west virginia are

subject number one, two, three, four, five, six and seven and always will be. this is a national, international program we are talking about. i think we have to strike a balance tween economic development which means joband modernizing the space program so we can remain competitive for gears to come. nasa's first mission must be to do what is best for the nation's. the american people deserve the most in the space program. nasa's world cannot stay static. the president has challenged the united states government to seek greater international collaboration, aníbal commercial services, developer exploration technologies and on top of that, i would include vastly expanded research. you are doing something up there right now that kills paulson

said thousands of people every year in this ountry and that's the kind of medical research, brought research, technical research, engineering research, all kinds of research. no better place to do a. and a degree of to develop new exploration technologies. so these are good priorities and should help ensure in tough fiscal times we build the space future in a measure and relevant and invative and sustainable way. and this is not bring to b.c.. one reason it isn't ging to be easy is because we are under a more or less flat line but most americans don't know that. i think most of them would welcome it if they did know it, but those of us who work in government and want to push programs for word that is hard to swallow. that does not affect the defense department or intelligence mmunity. it affects only part of the

veteran community. but nasa's budget of $18 billion may be a high water mark. we don't now what the soft free means. it may be a high water mark for years to come so we have to live with that and make the most of it. we cannot assume the agency will have unlimited resources for every mission that it wants to undertake therefore have to make hard choic. today i look forward to taking a robust evaluation of the agency planned for human space flight. but more than that we have to measure and shape of the goals against the greater national priorities for the years and decades ahead. i really feel strongly about that. nasa's research and aeronautics help create global leadership in aviation. we need scientific minds to be inlved solving today's and tomorrow's challenges and energy and medical research, robotics.

i've talked about these things and i really mean then. in addition we need to understand how we will support our work force and protect our industrial base and ensure our national security and strengthen international relationships and we have to examine how we use human spaceflight as an important role of smart power exemplified by the international space and u.s. participation. so, efforts like this can build stability. they can ensure global access to space and help us move forward towards greater chance to renzi as we establish the rules of the road which is what i think we are here to do. i know the focus today is specifically on the human space flight. i recognize that. but i do not want anybody to forget the agency's broad

priorities, which include exploration, science, economics, education technology, research of any and all kinds. these are the foundations of the future. they are known as important and i hope the agency finds that balance and moves forward again. i also hope they will increase our focus on the tashi nasa's space flight efforts to benefits in these areas. i want to thank all of the witnesses today including those who wer followed before now extremely distinguished americans including mr. neil armstrong commander of apollo 11 and eugene cernan, commander of apollo 17. we thank them for their service. in the past i should say in ending i have been critical of

nasa's financial and program management. am still that way as we move towards reauthorization i firmly believe this committee has a huge oversight role to play. nasa cannot continued on the same path and that judgment. i turn now to my distinguished partner, senator kay bailey hutchison. >> thank you, mr. chairman. i'm very pleased we have this hearing because i have been alarmed at the plans that have been put forward not the goal of the plans i agree with the goal. we should utilize safe science research that cannot be done as well in gravity conditions on earth and we need to be bold in exploring space so that we maintain our superiority in space exploration.

i appreciate all vigorously the two of you. general holdren, you have a distinguished career and are the at the minister and dr. holdren from the white house council of science and technology policy and i am very pleased, mr. chairman we do have the first man who walked on the moon and the last man who walked on the moon in the second panel, neil armstrong and eugene cernan along with augustine taxed with the president to come up with options that would save nasa, space exploration and putting humans in space. i find serious flaw in the area where detailed information has been provided by the president's administration. there are good reasons to have reservations about a proposal the discards billions of dollars of importt technology and engineering advancement paid for by american taxpayers and puts

us on a course that relies on a still developing commercial market to fill a role carried on for more than five decades. the legacy of leadership and pace took on the line and we need to have a credible pln to take the next step forward enhancing investment of the last four decades. we will get to mars by building upon existing cable the infrastructure premier investment and will to become work force in the world. we do not have a presidential commission to manage the transition of the workers to other jobs or other places. and we need a plan that preserves their extraordinary talent and challenges them to work on new goals and technology to build a bridge for where we are to where we want to be. anything in the president's proposal made by the potential development of new technology or the emergence of a customer

based beyond nasa to support a commercial space industry is another souce of point of potential mid program chillier that could undermine our human space flight capability. we must leverage our capability and work force to reach the goal. that is why for me the discussion begins with the international space station which underpins the reason to send humans into space and in short midterm while we work on the new technology to take us deeper into space. flying out the program on the current schedule before the analysis of international space station equipment that will need to be done it to extend the life of the shuttle for 2015 to 2020 is a risk. it is particularly risky when there is a potential need that haven't been met against the existing or anticipated the case

but will provide t only mns to bring the cargo to the station in the world without the space shuttle. i've proposed stretching out the remaining missions over the next two years ending the launch on the flight as an actual flight with available cargo capability. that would allow for the analysis and planning we must have to minimize the risk to the iss, international space station and bridge the gap that has been a concern of mine and also senator nelson since it wa first proposed four or five years ago. this is station provides a reason for current space flight and offers almost the entire business case for many of the emerging commercial space companies in the short run. safety has been asserted is a reason to stop the shuttle this year. but first i am not proposing that we add more just spread

them out over a longer period of time, two years. second item of x oftarget and that the vehicles are engineers have never had complete access to certification is safer than the space shuttle to carry the astronauts to and from the station. it is time to have an honest conversation about the space shuttle and its importance to the short-term capabilities. i am hopeful dr. holdren and general bolden can answer questions on behalf of the administration including have we taken every step possible to reduce the risks to the space station? how will the technology and engineering advances from $9 billion of investment and constellation program be leveraged and utilized if the program is discontinued? why ignore the options laid out in the augustine committ report and why wait until 2015 for the selection of heavy lift

vehicle design? what will happen if we do not have a nasa ellen they had managed capability like constellation or some iteration of constellation and profit printers struggle with cost overruns and ultimately fail? will american taxpayers have to build the company's? what observation what we have at that point except to continue paying whatever it takes to build the vehicles because the nasa capability has been dismantled. why not reform nasa's contract and practices rather than putting all of our emphasis on the developing commercial sector that may not be able to deliver. mr. chairman those are a few of my questions between the proposal i had advanced, the faults of other members and the recommendations in the augustine report there are many ideas abt how to reach a bold goals. american exceptionally some demands that we do better in the proposal but has been put

forward that doesn't have the plans to implement it in a safe and secure way. mr. president, i mean mr. chairman, i would just say i think ready to work with the administration. i would like for this administration to have the legacy of continuing our preeminent. i do not think the proposal but has been put fward will do that but i certainly would like to work in a bipartisan and certainly collegial way to achieve a goal that i think is the same as the president's bill i do not think he is putting forward a plan to achieve the goal and i want to help put that together so that we will spend our taxpayers' dollars wisely. we will not throw away the billions already spent so the space station which now has eight contracts waiting to go of through the nih and department

of agriculture to utilize the space station. there will be more if we know there is availability of the space station with a shuttle that we can control and no that there is a gap that will be a short gap, not five, eight, possibly to in your gap as we have new fledgling commercial lead to the that attempted to do things that have already been tried and proven or not proven in the nasa history. so mr. chairman i do think he for the hearing and hope it leads us to a better consensus that we can work together toward their shared goal. thank you. >> thank you. i now call on th subcommittee chair and that s senator nelson. >> thank you, mr. chairman. mr. chairman, there is a great deal that is riding on the hearing