that is my promised to them, and i will do that until the day i finished this oil spill and every last drop of oil is off the beach, so we can get them back to fishing again. this is about fight for their way of life, and we will get them back to fishing again. that is my promise. >> thank you very much. >> thank you. . .

this is a reminder to me about what this is about. it is about your way of life. i am doing everything i can. i hope you learn what we're trying to do -- the coast guard is trying to do to take care of this response. i was commanded to be here by admiral thad allen. i am in charge. i'm fighting for your way of life. thank you. please come and talk to me. i would love to hear what you have to say. do you have any words? please, what around, talk. thank you very much. [laughter] -- [applause]

see the latest readings, congressional hearings, and other videos like this, or a live feed of the oil spill online at our website c- span.org. >> let me first introduced our panelists and then i will say a few more words. starting from my left, john payton, a longtime litigator in the civil rights field and now director and counsel of the naacp legal defense fund. there is nobody who knows more about civil-rights and the consequences of the supreme court's civil-rights decisions than he does. next, we have ronald cass, former dean of a law school, former member of the administrative conference of united states and many other public bodies. that is his expertise.

congressman jerrold nadler, who i have known for many years, a democrat from the upper west side of manhattan. he is chair of the constitution subcommittee of the house judiciary committee and a very active player in constitutional issues. to my right, judge clemon, now retired chief judge of the u.s. district court of the northern district of alabama. he is now practicing law in birmingham. john hiatt -- jonathan hiatt is the executive director of the afl-cio, so there is nobody who is more aware of labor law issues. the supreme court has had quite a lot to say, for better or worse, about the state of labor laws in the united states. pamela karlan, who everybody knows and is indebted to for her wit and wisdom. she is a professor at stanford,

where she helps direct the supreme court clinic and is a very astute and wonderful observer of the u.s. supreme court. i thought i would start by having us talk about a case that has been kind of iconic for what it tells us about the court's approach to statutory interpretations in terms of the press disconnect between congressional intent and the way the court reads statutes. i should just say, as part of framing our discussion here, it is an excellent time to sort of do two things -- share two themes that will run throughout our conversation. we will take the temperature of the roberts court.

it is undergoing change, obviously, but we have seen enough to draw some conclusions in our various areas. the other thing -- theme that his panel embodies and will emphasize is the role of the judge's -- that this panel embodies and will emphasize is the role of the judges. we're talking about the primary aim of the acs, which is to push for the nomination and confirmation of progressive judges who are not going to stand in the way of the intent of the people as manifested through congressional legislation. let me begin with that. judge clemon has been involved with this iconic case from some years back -- the case of ledbetter -- lilly ledbetter. he was

a district judge in that case -- lily ledbetter -- lilly ledbetter. he was a district judge in that case about a woman's right+ to equal pay. we will talk about what happened as the case made its way to the supreme court. >> my role was fairly simple. the plaintiff, when she filed the charge with the eeoc, had learned of the disparity of wages between herself and her male area supervisors during that six-month period of time. when a magistrate judge recommended that the case be dismissed as untimely, it occurred to me that this was a jury question of whether the

plaintiff filed the charge within 180 days of the time that she reasonably should have known of the disparate wages. the issue went to the jury. and the jury was instructed on my view of the law in that respect. the jury implicitly found that she did file the charge within that requisite period. >> she had not learned of the disparity until she retired. >> she had not learned of the disparity and there is nothing remarkable about that, because the company had a policy of confidentiality with respect to salaried employees. one would not ordinarily expect that kind of knowledge to be free-blowing in the workplace -- free-flowing in the workplace.

the jury was convinced that she acted timely. was awarded all of the back pay that she asked for -- she was awarded all of the back pay that she asked for and they awarded her $6 million in punitive damages. i had to reduce that, $300,000.ely, actre to it was on remarkable to me that the 11th circuit reversed that. it requires for the plaintiff to prove -- requires a plaintiff to prove that his or her qualifications are so far superior to the competitor that they leap off the page and slap you in the face. [laughter] so, when the circuit reversed the decision, i thought that would be the end of it, but it does -- but the supremes decided

they wanted to make it a lot of the country. the supreme court does not always have the last word. when it is interpreting the intent of congress, ultimately, congress decides whether the supreme court got it right. the congress, i think, probably decided that the court did not get it right. that is how we ended up with the lilly ledbetter act. >> that was the first bill that president obama's signed into law when he came into office. it was a majority opinion by justice alito. there was a very strong dissenting opinion by justice ginsburg. you point that the private

sector could retire -- the employees pay was confidential. i worked for 40 years where nobody knew anybody else's salary and that is very common in the private sector. the majority seemed completely unaware. the reality of the workplace -- >> it is rather interesting that the present court, both the rehnquist court and the robert court, -- roberts court, seemed unaware of the concept of statutory construction, when you are interpreting remedial legislation, you did it a broad meaning, a broad liberal construction -- give it a broad meaning, a broad liberal

construction, so that the objective of the legislation can be achieved. you see that in the 1960's and 1970's. now, you only see reference to that language in dissents. that is a cardinal principle that has been around for more than 100 years. >> let me turn to john hiatt. the court's recent record on labor law cases is somewhat mixed. am i right in thinking that the push back against the ledbetter decision and congress is very surprisingly rapid overturning of that -- congress's very surprisingly rapid overturning of that sent some kind of signal to the court? what is your take on the way this court has been interpreting these cases? >> i wish i could say that i thought the reaction to the ledbetter case had been a wake- up call to the supreme court

that actually cause an ideological shift. i think there may be a temptation to see it that way because of some of the anti- retaliation cases that the court has decided. they have decided several in connection with a number of discrimination statutes. those have been coming out favorably from the point of view of the employee. >> am i right, john, that retaliation claims are the most robust and rapidly growing claims in discrimination? >> there certainly have been a number of them. 88, 1981, 1982 -- ada, 1981, 1982. title ix. there have been a number of those decisions. the court has been reading anti- retaliation provisions into the anti-discrimination provisions

of those statutes. the tendency to see those as the court showing a pro-employee or pro-worker bias of any kind or reading the statute in that way is probably not as correct as it is to see the court reading a pro-law enforcement bias into those decisions. i think back to the first season of "the wire." that is not the season that has the glowing portrayals of the longshoremen unions. that is later. [laughter] the first season dealt with drug dealing on the street. you may recall, it was only when somebody reported to the local judge that there had been witness tampering that the judge called the police chief. you then started having a real investigation of the drug- related murders. it is only when the court started seeing a threat --

seeing its own power of law enforcement challenged that it became protective of employees. we are the fortunate been a fishery -- beneficiary of those cases. it is not so much who is being protected as it is the desire that the statutes themselves are being protected and the court's role is not being challenged. if you look at other areas where the court has ruled in the past few years on worker and labor issues, you really do not see that worker-protective bias at all. indeed, you see a number of -- quite a number of cases where the court has been willing to interpret a statute in a manner that deviates from the central purpose of the statute, in a way that projects corporations, much more than being true to the

statutes court intend -- statute's core intent. >> this age discrimination case exemplifies what you were saying about the actual impact -- however person could litigate are real case against the rule that the court -- litigate a real case against the rule that the court set out. >> in one case, the court, in a number of disingenuous ways, ruled in a five to 4 decision, offered by justice thomas, in a way that very much deviated from the core purpose of the adea. this was a case where the court relied very heavily on hyper- liberalism. -- literalistm.

hyper-literalism. -- hyper-literalism. they substantially limit the protection against age discrimination given by the adea. it overturned decades of case law and congressional intent. the law shifted the burden to employers after a plaintiff showed that age was a factor, to show that the decision would have been made regardless of the plaintiffs age. under the new ruling, the workers carry an extremely difficult burden when it comes internalyers ' decisions. they have to prove that age and all other factor would have motivated this isn't -- motivated the decision -- and no

other factor would have motivated the decision. the court is intent on making new law. the court had no need in this gross case to reach the question of burden-shifting and eliminating mixed motive. the actual issue before the court was, what kind of evidence plaintiff needs to present in an age discrimination case? this was transferred -- that issue was transferred to a sweeping opinion that rearranges the fundamental rules on proving age discrimination. what justice stevens called an unabashed display of judicial lawmaking. we see that in a number of cases. obviously, citizens united, being a very good example of one where the court goes well

beyond the issue that was presented. it does not need to reach that. >> the gross case is a statutory interpretation analogous to what the court did in its constitutional attack on the campaign finance law in citizens united, which was grabbing an issue that the parties had not presented and running with it. >> not just mccain fine gold, but the 1907 law. -- mccain feingold, but the 1907 law. >> it is clear on the face of the opinion that it does not take a lot to realize what the court gave to the pork -- corporate sector. it was a fine grained statutory interpretation. it is not very accessible to the public. it is kind of an insider's game. it really takes the unpacking of

it, in explaining what it is that the plaintiff employee is being asked to approve, and what kind of evidence they can realistically present to avoid dismissal of their claim before it even gets to a jury, which is how the game is played a lot of these statutory cases. it is worth paying attention to these statutory cases for that reason. >> can i make another point about this which shows the disingenuous of the court's decision making approach? when you compare what it did in grows and the anti-retaliation cases -- in gross and the anti- retaliation cases, it refused to acknowledge burden shifting. the ada was complete parallel in meaning and language. they refused to attach

significance to that. in these anti-retaliation cases, the court relied very heavily on that parallelism. they presumed in the other case that ada prohibition of discrimination does cover retaliation, basing that on large part on their earlier interpretation of that same language in 1982. the same thing happened in the jackson versus board of birmingham education ccse. it happened in this section 1981 case on the basis of that same parallel language, which the court refused to give significance dto in gross. >> anti-retaliation cases are usually easier to prove, because there is some sort of smoking gun. you can show that, as opposed to

a failure to hide or to promote where the mixed motive issues come in. it is a giveaway on the retaliation cases. it does not make up for the losses on these kind of core questions. emmy turned to jonathan dayton -- let me turn to john payton and the issue of discrimination cases, both statutory and constitutional, and ask you, what kind of concerns keep you up at ninth these days when you think about the supreme court? -- at night these days when you think about the supreme court? what about that decision in the section 5 of voting rights case -- section 5 voting rights case? that still has me scratching my head. >> there are two different kinds

of tensions here that have been mentioned. what does the court do with respect to what statute -- what congress has said in a statute? does it give proper deference to what congress has said ought to be the law? what is their role in interpreting that? does it give appropriate gravitas to congress's role? who is the final say, as judge clemon said. in the ledbetter case, it is clear that congress can have the final say. in some title vii cases, one issue can be that the court says it has the final say. in a disparate impact claim, justice scalia's concurrence is read as saying, we can choose to have the final say here and overrule congress because we think there is an overriding

constitutional issue. in the voting rights act case, that tension is ever-present. we do not have permanent victories in the voting rights act cases. we never have. they keep coming back. there is always tension between what did congress say and what difference is it owed. -- deference is it owed. even if it is owed some deference, should the court exercise its power even where it is clear what congress intended? there were two pieces last year. one was the title seven -- title vii disparate impact case. the other was the voting rights act case. they both have that tension and they are right on the surface. the voting rights act case has to bb read this way. there were not 5 votes to find

section roman 5 unconstitutional. if there had been, i do not -- section x unconstitutional. if there had been, there are some who were concerned about the voting rights act. where is that now? what do i worry about? we have no permanent victories. we have other voting rights act cases. there is one in shelby county, alabama, challenging the section. it is before a judge in the district of columbia. it will be litigated again. we will go back over this ground again. one of the things that commentators said last year at this time -- it might have been right here at this panel and in this room. it might have been pam or me. we talked about this last year.

there was some concern that, evident in the opinion, maybe congress should do something to better shore up the voting rights act. here is my reflection on that. four years ago, we had a very important piece of legislation -- the reauthorization voting rights act -- passed almost unanimously by congress, with a really extraordinary record of findings. unbelievable hearings and findings. 98-zip in the senate. >> for 25 years. >> the argument last year was openly hostile to what that meant. there was a ridiculing of 98-zip really means nothing in the oral argument. the idea that congress should

then weighed in and fix that was what some of the commentators -- wade in and fix that was what some of the commentators said. it causes it to sound like fantasyland. no disrespect to congressman nadler, but i do not think there is a chance that congress could take any action on the voting rights act or any other major piece of civil rights legislation in today's poisoned atmosphere. that is just not a possibility. to the extent that they thought that was a possibility, no one really credibly things that. we do not really know where that goes. i want to make one more point about the title vii cases. last year, we had a case -- the firefighters' case -- this was a disparate impact cases. the short version is that, if you have an employment practice that has a disparate impact on african americans, that is not

job-related, then title vii says that is a violation of title vii. in this case, they used an employment practice -- a test -- that look like it had a clear disparate impact, whether it was -- a disparate impact. whether it was job-related was never litigated. the fact that they took action without litigating that caused extraordinary distrust to come out of the justices in their oral argument here there were openly distrustful of what motivated new haven. in their oral -- in their oral argument. they were openly distrustful of what motivated new haven. in the chicago case, the bonafides were litigated. the test was determined to be not only racially discriminatory, with a disparate impact, but that was -- that it

was arbitrary and unrelated to job selection or job performance. unrelated in any way. that finding was not appealed or contested after the trial court by chicago. we have a circumstance where the court is faced with a conceited concededly discriminatory practice. is it a violation every time it is used? in that circumstance, there was not the stame hostility. i do not want to overplay what that meant. we got unanimous opinion that i think is pretty good. the hostility that was present in the distrust of new haven acting in an area of sort of unknown behavior really ate up what happened there. the threat last year from justice scalia and his concurrents is that he threatened to set a disparate impact was itself

unconstitutional -- to say that disparate impact was itself unconstitutional and to give congress no role in fixing that. those concerns are not present this year at all. the backdrop of ledbetter played a clear role. we have a poisoned congressional atmosphere. i am not sure congress would step in and change things. these are battles we will continue to have. congress versus the courts. who has the final say? how'd we litigate these things? how do we make them -- how do we litigate these things? how do we make them work out? i worry that congress is close to passing a bill on crack cocaine that is being heralded as a great advance, instead of a 100 to one disparity, we will have 18.5 to one disparity where

the record says that there is one chemical that has the same effect. one is called crack. one is called cocaine. most of the people charged on the crack side are african- american. one iwho is charged on the cocaine side is caucasian. this is on the face of the discriminatory statute. we will have to reverse sides. i will say that i do not think congress is entitled to any difference when they pass something that is only last discriminatory -- not good enough. >> i want to back up for a minute on the new haven firefighters' case. i think people may not be fully aware of how outrageous the courts -- or at least justice scalia is a reaction to the claim that -- justice scalia's

reaction to the claim that disparate impact was based on congress itself. it was congress itself, in response to earlier supreme court decisions, that codified what had been the early title vii cases that made disparate impact a claim under title vii. justice scalia's analysis in that case lies in the face of, not something congress had implicitly allowed to happen or in the face of case law that had developed accidentally, but this was what congress directly responded to in a series of supreme court decisions. they said, this is what we mean. >> one earlier, it was about what really happens in the world -- one early comment was about what really happens in the real

world. take police and firefighters. it would be surprising to some people to hear that policemen and firefighters are trained to be police and firefighters on the job. there is no prior knowledge of being a police officer or a firefighter that you bring to the job. in fact, whatever the selection methods are, they are not designed to select whether or not you are a good police officer or a good fire fighter. you will be trained on the job, in the academy. you'll be trained that way. selection mechanism is different and on related to that. -- the selection mechanism is different and unrelated to that. there is a view that disparate impact is fading as a mechanism. that is backwards. we care more about things that seem to be neutral. they used a cutoff score that was inappropriate, given the

design of the test in that chicago case. we have a selection mechanism where we use it to select people to be police officers and men are firefig departments. -- man our fire department. if the chicago case comes out a different way, the new york case is in jeopardy. we have to care about things that seem facially neutral, but when the are applied they select out all of the women. they are not job-related -- but when they are applied is let out all the women or the -- they select out all the women, the latinos, or the african- americans, and they are not job- related. we want to make sure we rid our work force of anything that is

not job-related and has a disparate impact. it is a very important, real world reality check -- real- world reality check the congress has become a tuned - becomed in to.ned this will keep coming back and coming back. >> let me turn to congressman nadler. i do not think you offended him when you said you had no confidence that today's congress would repass the voting rights act as it did four years ago. he vigorously shook his head and agreed with you. [laughter] from your point of view, what would congress do to insulate -- could congress do to insulate its collective will from the kind of undermining

interpretation we have seen in these recent cases? let's start there. >> it is very frustrating. as someone once said, the supreme court is omnipotent, because -- >> not necessarily. >> within limits. in some cases, it is clear what we can do. we can rewrite statutes to recourse -- reverse a court decision when it is statutory, not constitutional. the ledbetter act was simply a question of getting the votes, which we were able to do, and then getting the president, which took an election -- which we were also able to do. it was the first bill that the president signed. the gross decision was a deliberate misreading of the age discrimination law. we are working on that now.

we have a bill to protect older workers against discrimination and to restore the mixed motive claims. we have explained what that is already. we hopefully will be able to get the votes to do that. >> what is the status of that legislation? >> we have held a hearing. we will bring it up for a vote at some poiont. -- point. we have the iqbal question. the supreme court, as part of its attempt to shut the door on litigants, essentially changed the law on pleadings, and greatly upped the bar. i introduced a bill to try to bring back the status quo.

senator specter and senator delay introduced a similar bill in the senate. i do not know if we can bring that to a vote this year. in an election year, there is a lot of nervousness in the democratic caucus against voting on anything they do not have to vote on where interest might be on the other side. hopefully that will dissolve after the election, but we do not know. >> iqbal is another example of what we were talking about pure the court changed the pleading standard -- talking about. the court changed the pleading standard. that was not part of the issue. it could have been -- the court could have reversed, had it cared to, and very narrow grounds -- on gary miller grounds the immunity claim -- on

very narrow grounds, the immunity claim. >> the citizens united is a perfect example of where they could have decided on a very narrow grounds. they asked for a real argument on questions that have not been refiled. the justices did not like a lot. they could not wait for a case to present it. they reached out because they wanted to change lathe law. we of scarce time and resources to correct the courts in cases -- we have scarce time and resources to correct the courts. it is frustrating, but it is doable. somebody suggested that we have to start putting a freeze and a lot to say, this time we mean it -- the phrase in the law to say,

this time we mean it. [laughter] obviously, we would then have to say what we mean. [laughter] drafting the legislation to achieve -- it may be more difficult for us to draft legislation that achieve the results that are intended, without reading-, unintended consequences -- without creating negative, unintended consequences. a court has made it impossible for congress to depend on a constant definition of statutory service. the accord included the words " because of" to mean -- the court included the words "because of" to mean something very different. it removes a critical backdrop against which congress drafts. the premise is that they know what certain words mean.

the court interpreted those words to mean something else. we could not put those words somewhere else and what they mean any more -- and know what they mean any more. it all depends on what the court wants to achieve, not what congress wants to achieve. they have boxed as in by a refusal to create broad rules and they have demanded that we identify with great specificity every law we seek to address with a specific change. they created an negative inference -- a negative inference, so that if we fail to name one, we obviously did not mean etit. that is a great danger. i think that was hamiltons objection to the bill of rights, that if you delineate certain rights and you do not name one,

someone will come along and say, we do not have that right because you did not name it. luckily, the framers came along and did not agree with that position. it is easy to disagree with basic positions. they have adhered to other established -- they have stopped adhering to established standards. >> a bunch of them are refusing to look at legislative history at all. >> justice scalia has done that. in the voting rights act case, in some of these cases, going back to the religious freedom restoration act -- the court has said this, and i think it is improper, congress did not establish a sufficient record. if congress decides that we want

to do a or b, it should not be up to the court to decide that we did not have a good enough record. we may be right or wrong. it could be an intelligent or an intelligent decision, but that is for the voters to decide. -- or unintelligent decision, but that is for the voters to decide. the court says, you did not establish enough of a president. -- precedent. jim sensenbrenner and i chaired the hearing after hearing after hearing to establish a broad record for renewing section five of the voting rights act so they could not say that. i am not sure -- i think justice isalia said 98 to nothing just political pressure. there is a contempt for congress. >> it it would have been 51 to

49, he would have said, there is no consensus. >> this court is a very activist court. it goes where it wants to go. it substitutes its judgment for congress. that is the definition of an activist court. how willing is it to us precedent? the warren court was an activist court in that respect. in that respect, this is a very activist court. how willing is it to upset legislative determinations? this is an incredibly activist court. there is no umpire judging balls and strikes. it takes a lot of time and energy. once you achieve a legislated end, that ought to be achieved until someone else gets a decision the other way. we have to replay the game.

>> it is an increase in polarizing congress -- an increasingly polarized congress. >> that is reflected in the country. as a general observation, i think it is fair to say that, our two political parties today are more ideologically opposed than at any time in history of the republic, except for two times. i can only think of two times when they were more opposed ideologically. one was in the 19 -- one was in the 17 nineties. the other was the decade before the civil war. -- one was in the 1790's. the other was the decade before the civil war. it is very dibble to legislate. it is very polarized -- very difficult to legislate. it is very polarize.

it is very difficult to get a super majority -- it is very polarized. it is very difficult to get a super majority in the senate. >> let's talk for a minute, before we turn to others, about the citizens united fixes that are moving down the pike to get around the constitutional holding of citizens united. there was a major development that threw one of those off the track. can you talk a bit about that? those of us in this hotel -- it has been hard to keep track of what is happening. >> it is very frustrating. i am very much in the middle of this. sometimes, it is very frustrating to watch purists

commit suicide and take a lot of others with them. [laughter] this act is an attempt to do several things. supreme court, in citizens united, says that corporations can drown the political process in money. they can do it secretly. there is nothing anybody can do about it. if that continues, that is another great step in the destruction of the democratic system in the united states. i have said for a long time that the campaign finance system is a metastasized cancer on the political system. if we do not fix it, like in the roman republic, they developed into an oligarchy or plutarchian or something else. we are going that way. we cannot fix it that much.

we can do certain things. if you cannot prevent british petroleum, for example, from spending $20 million on ads saying that's joe blow is a son of a bitch, at least you can make them safe, "this message is brougtht to you by bp." [laughter] nancy pelosi mentioned an example of this from the california election two weeks ago. but the the gas and electric, which is apparently as popular in california -- pacific gas and electric, which is apparently as popular in california as bp is in the south, that they could only do so by a referendum, in other words, they eliminated the majority rule.

they spent $46 million in corporate funds on that campaign. the opponent spent virtually nothing. california has an enologist statute -- and analogous statute -- an analogous statute. this ad brought to you by pg &e. the referendum failed. the first part of this act is that you have to announce -- if you are doing any ad, you have to say who is sponsoring it. it does not help if you find out that it is the committee for better environment for the chamber of commerce, and it is really bp. the front organizations have to announce the largest contributor

is british petroleum, or something like that, so that they cannot hide or veil it. it does add a couple of other things. companies who have certain kinds of contracts with the government cannot spend money this way. if they are foreign-owned, they cannot spend money this way. the nra comes along and says, wait a minute. the nra owns congress, in the sense that, there is more than a majority of members who will simply not vote for anything the nra says vote against. you see this in things like the gun amendments to the d.c. voting act, which has nothing to do with guns. you can kill anything by putting a gun in it. >> you saw it last summer. >> yes, you see it in a lot of places. the nra says it does not want to be subject to revealing their donors.

no one sponsoring the bill cares about the nra revealing its donors. the nra is upfront. people like them or hate them. we have no interest in the nra having to say the largest single share of this ad was paid for by so and so. ditto for the other groups. in order to stop that, we rode an -- wrote an exemption. we did not wanted to be only for the nra -- want it to be written only for the nra. when it was written for $1 million, no one thought that was the nra only. -- for 1 million members, no one

thought it was only the nra. [laughter] when the provision was written, we thought it applied to a lot of groups, but it did not. there was nothing about 1 million. make it half a million or 3/4. we want corporations to be able to be forced to say who is behind the ad. as i said, up front organizations -- upfront organizations like the nra or the sierra club -- so what? it is wrong to single out the special interest group. sometimes, you pay a price. it is wrong to go to war, but you had to do it in 1941. there are certain things you

have to do. we're going ahead with that argument right now. the enemy -- to say that legislation -- in the meeting yesterday, i said, the corporations are what in here with a gun to your head -- are walking in here with a gun to your head, supplied by the supreme court. here is a shield. do not object because you want a pink one, not blue. [laughter] in my mind, that is the nature of the objection. some say that is wrong. it is very important. compared to what is at stake, it is absurd. longtime blue dogs do not want to vote against anything that the chamber of commerce tells them to vote against -- a vote for anything that the chamber of commerce tells them to vote against, because they are afraid.

they are being absurd. a moment the chamber of commerce gets its way, they are going to come after them. >> we have to move on. thank you. that is a fabulous example of how difficult it is for congress to respond to a supreme court decisions that fundamentally misinterprets the will of congress. congress is disabled. >> this was a constitutional, not statutory decision. >> it will blunt the impact of a constitutional holding. at this point, i want to turn to pamela karlan to talk about the judiciary judges and how we got in this fix. tell us why judges matter. >> i want to start with the

story that was told by joe mccarthy. [laughter] not the satanic senator. the former manager of the new york yankees. he had a dream in which the devil found him -- took into a baseball game. joe mccarthy was in heaven. he said, i do not why you are challenging me. my team is going to be baby ruth, thomas wagner -- for those of you who re young, these are famous players of the joe mccarthy era. it could be a rod -- a-rod for you guys. [laughter] he said, i will have all of these players. what is the point? he said, you have the players, but i have the umpires. [laughter] in a nutshell, that is my point today. if you look at the topic today,

constitution, congress, and the courts -- i want to talk about the linear relationship between these entities. the constitution is written in very broad language about very broad principles that were intended toendure for -- to endure for a long time and to be applicable to a nation that the framers knew would emerge, but they did not know in what form. that is why the most important part of the constitution are written in broad and sweeping language. one thing we know is that, at the second framing, in the reconstruction era, when congress fundamentally remade the united states -- before the civil war, if you read supreme court decisions that talked about united states, they used the plural. the united states are at war with britain in the war of 1812.

after the civil war, that is where you get it being used as a single phrase. the united states is at war. when the reconstruction and amendments were enacted, what they said was -- they gave congress special power to enforce, by appropriate a decision, the guarantees that go into the rights of citizenship, the guarantees of the privileges and immunities clause, the " protection clause, -- the equal protection clause. they distrusted the supreme court. the supreme court is living off of the fumes of brown against board of education. that is why they have such power in our country. at the middle of the reconstruction, they were living off of the fumes of dread scott -- dred scott. you went to the legislature to get equality, not the supreme court. they are given a real-life

meaning by congress. if you ask where we got a quality, it is from the civil rights act of 1964. -- equality, it is from the civil rights act of 1964. more african americans were enfranchised after the passage of the voting rights act of 1965 than in the entire prior century through judicial enforcement alone. congress banned littery test -- literacy tests when the supreme court would not. congress a people the right to register when the supreme court did not -- gave people the right to register when the supreme court did not. we have not been talking much about the courts. we have been talking about the court in the singular. this is not mostly about what the supreme court does. in the end, it is very important what the supreme court

does. it is also important what the district courts and the courts of appeal are doing. no one is paying attention. the administration is not moving judges on to those core to our proposed -- prepared to enforce - on to those courts twho are prepared to enforce these laws. let me say something about iqbal. iqbal says courts are supposed to determine whether the plaintiff's claims have been plausibly pleaded. it goes on to -- this was a case alleging unconstitutional ethnic and religious-based sweeps after 9/11. is it possible to think that after 9/11, high government officials are frightened by the invasion of american soil, and they might have used race as one

of the bases for sweeping people up? they say, we do not think that is plausible. [laughter] i have one thing to say -- i do not know what were you thought i would going -- was going to say. [laughter] do i believe in that? i have seen it. if we had judges like judge clemon being asked if it was possible to believe there was racial discrimination in a particular case, is it plausible to believe that the employee did something -- how that possibility is determined is very different than when people do not believe -- people who are on the bench who do not believe in discrimination because it has not happened to them. it is critical toin