justices for dinner at the supreme court building. it is one of the only time to come into contact with the justices in a social setting. most of us look forward to it. we wonder which supreme court justice will draw our table. this last time we got together, i was sitting with justice kennedy, and we talked about a lot of things. i said to him at 1 point, it appears that i am going to be the chair of the crime subcommittee of the senate judiciary committee. what kind of issues do i think i should consider? he said, i will tell you what we think -- he mentioned the issue which has not yet been raised during the course of this hearing. . related to the system of

incarcerations and corrections in the united states. he felt, and i agree that our system is broken, badly broken. today in the united states, more than 2.3 million people are in prison. we have the most prisoners of any country in the world, as well as the highest per capita rate of prisoners in the world. and african-americans are incarcerated at nearly six times the rate of white americans. one of the highlights of justice sotomayor's hearing last year was senator sessions who told wade henderson, we're going to do something about that crack cocaine thing. many people joked about senator sessions choice of words, but i heard him and followed up on it because i was glad to hear he shared my interest in this important issue. he was referring to the crack powder disparity in sentencing in the united states, which is one significant cause for a

record levels of incarceration and racial disparity in our system. it takes 100 times more powder cocaine than crack cocaine to trigger the same mandatory minimum sentences. crack cocaine sends the same five year mandatory minimum sentence as selling 500 grams of powder cocaine. senator sessions is a man of his word. earlier this year, the committee unanimously passed legislation to reduce the crack powder disparity from 100 to 1 to 18 to 1. some of us had hoped for 1 to 1, or some other configuration. but this was, in fact, a wholesome bipartisan agreement that was reported favorably with an overwhelming vote from this committee.

in 1997, you and your colleague bruce reed, who i believe was with you yesterday said that clinton should support a 10 to 1 ratio because it was a middle road. perhaps we could have taken up the issue even earlier. some said you demonstrated your far left political views during your time in the clinton white house, but i think this example and many others prove them wrong. can you give me your views on this crack powder ratio disparity, why you thought 10 to 1 was a reasonable alternative? and if you could, address this general question that justice kennedy raised about what's happening in america when it comes to our prisons and correction system.

>> senator durbin, the crack cocaine ratio is the part of our sentencing system that i've had most to do with as a policy matter. when i was in the clinton white house and serving as a policy aide to the president, we did deal with this issue. and suggested that the ratio be reduced to 10 to 1. i think at that point, some of us felt it might go down even further, but thought that 10 to 1 was the practical approach to take. that it was conceivable. that the clinton administration did not manage to make progress on that issue.

president obama said there's no real rational distinction between crack and powder cocaine. for sentencing purposes. the -- and that distinction that does exist is a distinction that has a great deal of racially s disproportionate impact. i know that congress has struggled with this issue. it is a policy issue. quintessentially. it's one that justice kennedy could have said this is a good idea or that's a good idee, but it really is one for congress. it's nothing that the supreme court or that any court can do about it. it's really one that congress has to decide what the sentencing rules ought to be with respect to crack and powder cocaine.

president clinton said strongly that it should go down. i tried to the best of my possibility to implement his policy view on that question. president obama believes the same, but as a judge, the only thing that would matter would be the actual statute. and unless and until congress changes that statute, the current sentencing system would be the system that any judge should apply. >> we write the laws, and as a judge, we follow those laws. as you step back looking at this system. when you look at our system of correcti corrections, you see dramatic incarceration in the country. does it suggest to you that we

truly could have quality under the law. >> crack powder is what i've dealt with most. there are many i have not dealt with as a policy matter. i have seen some sentencing issues with -- in my time as solicitor general. but i have tried very hard during that time to apply the law that exists. and to take appeals in a way that appropriately implements that law. so i think this -- i think justices of the supreme court are appropriately interested in these kinds of questions. i know that justice kennedy has taken a deep interest in sentencing issues. i think that's much to his credit. but it's kind of an interest that i think has to be advanced in conversations of the kind that he had with you.

when a justice applies only the law that congress gives him or her. and it really is up to congress to decide whether the system that we have is the correct one or whether to change it. >> what i found interesting, such a fan of john paul stevens. and if you look back at his political origins, we came out of different branches, from different branches of the illinois political tree, that's for sure. but in the time he served on the court, over 30 years on the court, i really have come to respect him so much. and the role that he plays there. what i find interesting is a parallel outcome in you dishl careers.

justice blackman at the end of his career, near the time of his retirement med an observation about the death penalty, which he had supported throughout his term on the supreme court. case came along and he had a famous sentence. from this day forward, i shall no longer tinker with the machinery of death. he basically had reversed his position on the death penalty, after more than 30 years of service on the bench. when he concluded it could not be applied fairly based on his experience and all the cases that have come before him. justice stechvens had a similar epiphany and he went through a long analysis of the death penalty and concluded as well

that it was cruel and unusual and he basically said it wouldn't affect the ruling in this particular case that he believed at this point in his career, he could no longer support the death penalty. you've had questions asked of you from this judiciary committee when you came before us about your position on the death penalty. and i think -- i know what your answer is going to be. then i would like to ask a follow up question about justices stevens and blackman at the end of their judicial careers. would you state your position on the death penalty? >> you're exactly right, senator durbin, that this was asked of me during my solicitor general hearing in the written questions that followed, and i said then what i'll repeat today which is the constitutionality of the death penalty generally is established law and entitled to

pre presedential weight. i think someone asked if i had moral qualms about imposing the death penalty. i think the concern was whether in any work as solicitor general i could appropriately make decisions, and i said that i had no such moral qualms and that i could conscientiously apply the law as it was written. >> now isle ask you to reflect on what happened at the end of the judicial career of justices blackman and stevens, where after considering all of these death penalties throughout their time on the bench, they came to the conclusion that we could not apply this law in a fair way without creating an unfair result. what do you think led them to that at that point in their careers?

>> i don't know, senator durbin, and i would be reluctant to speak for either one of them. this is obviously a difficult area of the law, an area in which there are great stakes and where people and judges feel their responsibilities as very heavy and appropriately so. as i suggested to you, i do think that the constitutionality of the death penalty generalcy is precedent. i think senator stevens agreed with that. he did not think that it was appropriate to do what justice marshall had done which is dissent in every death penalty case. >> when you clerked for justice marshall. his views on the death penalty

were well known. can you recall conversations with him on the subject when you were a clerk? >> well, they were well known. and his clerks had as a kind of special responsibility, and justice brennan's clerk as well. and clerks carry out the vision of the people for whom they work. and justice marshall and justice brennan did believe that the death penalty was unconstitutional in all its applications. but more specifically, i think viewed themselves as having a special role in each death penalty case to make sure there were no special problems in the imp position of a death penalty and if there were to pring those to the attention of the rest of the court to make sure those issues would not be missed or overlooked. and the clerks, that was a

significant part of the job. >> and for the record, your position as you view this issue, if you're confirm, becomes the supreme court justice could be different than that of justice marshall? >> senator durbin, it would be, because i do believe that the constitutionality of the death penalty is settled precedent going forward. and justice marshall did not believe that. >> general kagan, you've been nominated to replace justice stevens who led the supreme court's effort to reign in bush's claim of executive power. i think the american people need have confidence that you, too, will stand up for a basic constitutional rights if you come to conclude that the president has overreached. the bush administration took the position that the president has constitutional authority as commandner chief to indefinitely detain an individual who provides support to a terrorist organization, even if the person

didn't know or intend to support terrorism. the administration argued that a little old lady in switzerland could be held indefinitely without trial for innocently making a donation to a charitable organization that she did not know was actually a front for a terrorist organization. you discussed at length with senator graham earlier and senator feinstein as well. as solicitor general, you've argued the obama administration that the aumf, authorization to use military force permits the detention of someone who provided substantial support to the taliban, al qaeda or associated forces, even if they're not on the battlefield or has participated in hostilities. this is obviously a change or improvement on the bush administration position because it's based on congressional authorization. not presidential dictate. but i'm still concerned that it's inconsistent with some of our treaty obligations which only permit the military detention of battlefield combatants.

a nonmilitary combatant should be prosecuted and not subject to detention. you argued that detention authority, as solicitor general, but does that necessarily represent your personal opinion or how you would rule on the legality of a supreme court justice? >> senator durbin, i think in general the positions i've taken as solicitor general do not necessarily represent positions that i would take as a justice. and i appreciate or actually suggest that point, in case i haven't emphasized it enough. j. the positions that i've taken as solicitor general are positions for the united states government. >> advocacy. >> and are -- i have a client and the best advocate i possibly can be for that client.

the role of the judge different than an advocate and it is important to point that out. >> so they have not ruled providing a person for support to terrorism, is that right? >> the supreme court in hamdi discussed only the detention of minute bee lidlij rance who ared up on the battlefield. >> with certain due process protections, the u.s. may detain individuals who fought against the united states as partst tall back. the supreme court has not upheld military detention in the war in terrorism other than this narrow class of battlefield detainees as i understand it. is that the way you understand it? >> yes, your understanding is mine. that hamdi talked about people picked up on the battlefield. >> that is one of the concerns i had with the nominations of

justices roberts and leito. as an appellate judge, john roberts held that president bush's military commissions were legal even though they were created without congressional authorization and allowed the use of evidence obtained by torture. the supreme court reversed judge roberts saying they violated the law. incidentally, justice stevens was the author of that opinion. the hamdi case, while pending, there was an extraordinary effort in congress to force the supreme court to dismiss the case by retro actively stripping the right to habs habeas corpus detainees. you wrote a letter opposing that legislation. you could tell me about that position and why you took it at that point?

>> i did write that letter and it was a letter that urged congress to really the principle point that we were making in that letter was that the adjudications made by military commissions ought to be reviewed in article three courts. congress did, indeed, do exactly that. the initial amendment was recrafted into the graham-ky graham-kyle-levin amendment. it was an extraordinary act of bipartisanship that occurred. i think it was the vote was 8 a-14. one of the things that legislation did is -- i'm not remotely suggesting cause and

effect, but the letter urge there be article three review and they provide a military review of military commission determinations. >> i bring this up because it's come up during the course of this hearing raised by senator kyle and then in your discussion with senator graham. and there's one other element that should be mentioned. the supreme court agreed with your conclusion in that letter, even before the passage of this graham-kyle-levin amendment. it held that holding that it violates the u.s. constitution to deny the detainees to habeas. they said the laws and constitution are designed to survive and remain in force in extraordinary times and justice stevens was fifth vote in the case. no surprise chief justice roberts and justice aleet dalit dissented. so they agreed in that letter

that you sent. a pretty good validation of the point that you were making. i'd like to ask one other area that's come up here a couple times. and my friend senator corning has left. i know that his position is shared by many others on the other side of the table on this whole question that comes up virtually every hearing about this notion of activism and the role of a judge and the constitution, particularly a supreme court justice and the constitution. and it strikes me there's something mising in this conversation. this notion of a mechanical court and robot judges, just doesn't seem to me to reflect the reality of our system of justice and our history on the court. brown versus board of education was well hidden in the 14th amendment for a long time and discovered in 1954, that it really was the original

intention. but for at least 60 years or close to 60 years, the controlling case on this. and said separate versus equal was acceptable in the united states when it came to our schools. it sounds like you agree with the concept you have to stay in the constitution but different conclusions can be reached. in the 14th amendment they came to the opposite conclusion. so can you, for my sake, you could clarify the questioning of senator corning in light of that precedenttial case. >> i would like to make two points. the first point is that judges are always constrained by law. and that the only sources that

judges can appropriately look to are legal sources. judges can't import their own personal preferences or their political preferences or their moral values. it would be inappropriate to do so. the role of a judge is to determine what the law requires and then do that. that's the first proposition. the second proposition is that there are hard legal cases where people struggle with these issues, where people struggle with what the text and the structure and the history of the constitution and the precedence that apply the constitution require. that can happen in the cases that you suggested and brown. but it happens really all over the place. it happens not infrequently, i

would say, at the supreme court level. so usually the cases the supreme court hears are the lower cases. of course, the lower courts sometimes disagree and the case is not so hard and the supreme court decides 9-0 and, you know, it's all easy. but there is some very difficult cases which involve clashes of constitutional principles. >> if i can follow-through on one that i've not been able to raise. it's not sure how often it's come up. the griz wald case. state of connecticut was basically regulating the availability of family planning and birth control. and this case challenged that law. basically, the supreme court found a word in this constitution which we can't find, privacy. and said we have a right to

privacy in our homes and families. some analyzed it and took a look at justice douglas' opinion were kind of stunned to see that he even went to the third amendment to say that that guarantee a right to privacy, the right privacy in our homes, third amendment, talks about court ordering soldiers. he referred to it during the course of that opinion. so could you put that decision on gris wald and privacy in the context of this explanation you're giving me? >> well, senator durbin, i actually think that the griswald and the holding has grounding on the text. and the way that most justices think about this is the 14th amendment, the due process clause of the 14th amendment

guarantees liberty and when it guarantees such liberty, it means more than freedom from physical constraints and it also guarantees more than procedural protections. there is some substantive protection of liberty that's incorporated within the 14th amendment of the constitution. most justices believe that to be the case. there are still difficult decisions on what that consists of. i think most of the supreme court judge dozen fully accept the griswald holding which suggested that a couple's ability to use contraceptives ought to be up to that couple. the government could not appropriately interfere with that decision, consistent with the 14th amendment's protection of liberty.

the liberty clause does give rise to real disagreement in other cases. the extent to which that spear extends. and those are, one, but not the only kind of cases in which there are hard questions to be determined. another very different case that raised this to me recently, i mean it shows the varying context in which is difficult questions involving constitutional principles can occur is a case that i argued recently. it involved the material support

statute as kinds certain kinds of activity, certain kinds of assistance to terrorist organization that's took the form of speech. and when i was arguing that case, i was subject to questions and the opposing lawyer was also subject to questions from all the justices, all the justices clearly thought that this was an incredibly hard case because it involved very hard but competing legal values. the value of free speech on the one hand and the value really of protecting and defending our country on the other. and, you know, that's a case in which this clash of constitutional principles can occur, in which reasonable judges can reasonably disagree about the results. so to say that something is law all the way down, which is absolutely the case, that it would be completely improper for

a judge to import personal or moral or political preferences into the occasion, but that's not to say that law is robotic. it's not to say that everything is easy in the world of constitutional law or indeed of statutory law. >> thank you very much. >> am i next to plan or last? what's our plan? >> let's see how we go. >> thank you. it's been a long day for you. >> and i'm concerned about the witness and her stamina. >> her reputation says she's tough as nails. she can make it. >> you do get the arthur murray award. you are dancing a little bit, much to my chagrin. maybe you should be on "dancing with the stars" or something. i want to go to a couple areas.

one of the people i respect most in the senate is somebody that's a polar opposite of me, his name is russ feingold. and he stands for his liberal positions, defends them, doesn't run away from them, talks about them and stands up and beats his chest because he thinks he's right. and i've never walked away from my conservative positions. i don't apologize for my social conservatism or my fiscal conservatism. and one of the things i told you, i want america to know who you are. and, you know, you've kind of not allowed us, you know, i don't know what a liberal progressive s i know what a liberal s i think you're a liberal. i think you're proud enough to defend that. you have a very different belief system from the people that i come from. it's not wrong to have that belief system. it is wrong for us not to know what you believe about a lot of

things. you're very pro-choice. you believe in a woman's right to choose. you believe in the gender mix marriages or gay marriage. you believe that states ought to recognize those throughout -- if i say something that is inappropriate, please tell me. >> well, senator, i suppose what i would want to say at this point is that the way i would vote as a legislator with respect to any or all of those issues is -- >> i'm not trying to label as a judge. i'm just saying it's important -- i'm not saying you're not going to have the capability to separate those positions. i'm not saying. that but it is important. you think there is appropriate time to use foreign law in your solicitor general testimony in terms of answers to questions. >> may i interrupt you on that one, too? >> i'll give you a chance. >> you have made statements for

assisted suicide in terms of that being an appropriate thing. so i'm not saying that that will limit your ability to make great decisions as a jurorist. i want to spras theparate that now. the american people have a right to know what is -- who is elena kagan. smart as all get out, super accomplished, tough as nails. i would not want to be a supreme court justice with you. i think i'd get run over. i believe you have the superior intellect and ability to reason. i listened to a lot of it here. but, and, again, there's nothing wrong -- i love russ feingold to death. but we're totally different. and that's one of the things that makes our country great. but it's not something that i don't want you to run away from that. that's who you are, you fought for a lot of causes in your life.

i don't know one judge that can separate themselves 100% from who they are when they make a decision. so i don't know that anybody knows a judge that can do that. so it's not unfair to say who you are. and it's not to slam at all. it's just you're different than me and many of the people that i represent. so i wanted to establish that. i want you to have a chance to say something in response to that. i'll be happy to give that you chance right now. i'll debate anybody about what i believe and why i believe it. i believe you would do the same. do you have a comment? >> let me take on just a couple of the particulars and then maybe make a more general comment. you said as solicitor general i advocated the use of foreign law in some circumstances. i do just want to make clear

that what i said in those questions -- >> here's your quote, exactly. >> was that because there are justices on the supreme court who believe in the use of foreign law in some circumstances, that i would think it was appropriate as an advocate to argue from foreign law and cite foreign law in any circumstance. >> that isn't what you said here. >> i think, senator coburn, with all respect, that if you look at the question and if you look at the answer, i was speaking in my role as an advocate saying that the primary consideration of an advocate is to counts to five and to try to do the best the advocate can to insure that position that the advocate is taking will prevail. >> but it's not your position because some other justices are using foreign law you have the authority to do that as well? >> as an advocate to the extent that i think that foreign law

arguments will help the government's case, then i will use those foreign law arguments is what i -- >> let me read something you to. it's obvious i'm not a lawyer. okay? it's pretty obvious. but article three section two says this, the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the united states and the treaties made. %%where -- nowhere in our constitution does it give the authority for any judge, chief justice of the supreme court, any jurorist on the supreme court or any other court to reference foreign law in determining the interpretation of what our statutes or our constitution will be. so this is an area where we have grasped, where our judicial majority, much like the israeli judge that we start reaching

beyond the constitution. you said it was all law. you said that the determination will always be law. it's down to law, law, law. earliest questions that you were asked in this hearing. well this is the founding document of what the law is. nowhere, that i can find in this writing or in these guy's writing says anything about using foreign law. so please explain to me why it's okay sometimes to use foreign law to interpret our constitution, our statutes and our treaties. >> senator coburn, i think for the most part i wouldn't try to convince you of that because i don't think that foreign law is appropriate as precedent or as an independent basis of support in the vast majority of legal questions. now i suggested to you a few

that specifically might reference international considerations such as, you know, the right to receive ambassadorors something like that. even there i think the citations would not be a precedent. they would not have binding weight of any kind. but they might be relevant to interpretation of -- >> relevance is about getting knowledge and gaining knowledge. but there's a -- you have a different guide. the oath that you'll take as a justice of the supreme court is to uphold the constitution in our statute. >> i think i agree with you on that, senator coburn. >> don't worry. i will never get there. >> all right. let me move on then. if i may. if i can keep on. one of the things you said today really concerns me. and let's see if i got that.

you are being asked a question and you said in other cases original intent is unlikely to solve the question. and that might be because the original intent is unknowable or because we live in a world that's very different from the world in which the framers lived. in many circumstances, precedent is the most important thing. is the precedent more important than original intent? >> senator coburn, let me give you an example. i'm not sure if it was an example i used before or not. but in the first amendment context which is a context i've written about a good deal, it's fairly clear that the first amendment doctrine that's been established over 100 years departs significantly from the original intent of the framers. and here's one example is that i think the framers would never

have dreamed that the first amendment would in any way protect people against libel suits, the first amendment had anything to do with libel. so when the court said and "new york times" v. sullivan that a public figure could not sue "the new york times" and claim damages for libel without meeting a very high bar, without meeting the so-called actual malice standard, i think that was something that the framers would not have understood. now -- >> why would you think they wouldn't have understood that? >> i think -- >> they had print back then. we didn't start that early in terms of formation of our country. >> i'm sorry for interrupting. i think the evidence is very clear that framers didn't think the first amendment add all interfered wit libel suits. now over time, as courts have applied the first amendment to different contexts and different

circumstances have seen different factual problems, have had to consider different cases, i think that court sensibly thought that the principles that are embodied in the first amendment could not be protected unless -- unless the decision in "new york times" v. sullivan was issued. >> so let me go forward with that. who can change precedent? let's have a law lesson. who can change precedent? >> the court can, but it's a very high bar. the court can overturn a ruling. but it's a very high bay. the precedent -- >> what does a high bar mean to the average person watching this hearing today? >> well, it has to be a very extraordinary circumstance or a very unusual circumstance for a court to overturn a precedent. and the usual circumstances that are mentioned are where the

precedent has become completely unworkable, where it's clear that precedent just is producing mafi i massively inconsistent results. >> so, for example, brown versus board of education, that upset precedent on its ear, didn't it? >> it did, senator coburn. >> so what was the purpose in changing the precedent? was it to change plesy versus ferguson or go back to original intent? that's where i'm having trouble with what you said. because, you know, i know our framers weren't perfect. but i think their motivation were really pure. and for us to have a justice that says precedent is more important than original intent is going to give a lot of people in this country heart burn. because what it says is our intellectual capabilities are better than what our original

founding documents were. and so we're so much smarter as we matured that they couldn't have been right. and that's dangerous territory for confidence in the court. >> senator coburn, i think what i'm trying to say is that courts appropriately look to both kinds, both keys to constitutional interpretation. the courts appropriately look to original intent. the courts appropriately look to precedent. and that it depends on the provision of the constitution and it depends on the case. it depends on the issue as to whether which is to -- as to which one of those is most helpful and that it's a pragmatic approach looking case by case to try to figure that question out. and i think what i'm saying -- i would say two things about it. it's both extremely descriptive of what the court has done, that the court -- >> historically speaking. >> historically speaking and currently.

and the second point i would make is that, in fact, when the chief justice was sitting here, chief justice roberts, he stated the same thing. the same principle that i'm trying to state is that one should appropriate the question of constitutional interpretation and pragmatically without a single overarching theory, without something that says you always look to the specific original intent or you always look to something else. that sometimes the original intent controls and other times it may be an unknowable or far removed from the current problems. >> but that's a judgmental decision, correct? you're going to make a judgment about whether original intent doesn't apply. or is unknowable? and what may seem to be unknowable to you may be knowable to another judge. correct? >> senator coburn, i don't disagree with you that judging

requires judgment. >> well, that's its whole basis why we're having this hearing. where's the judgment going to come from. because it takes me to the next thing that you said that i have heart burn with. i have great difficulty in the ability to take off my advocate hat and put on my judge's hat. and my question to you is, i would have the same problem. i will tell you. how are you going to take off your political hat? what are the processes with which elena kagan is going to take off this advocacy of a liberal position in this country as she becomes a justice of the supreme court so that advocacy had is gone and only the judgment hat is left? how are you going to do that? you already admitted you have trouble doing that now just from a solicitor general standpoint. >> the advocates hat i was referring to was not a political hat. it was the hat that i wear as

solicitor general of the united states representing the interests of the united states. that has nothing to do with my own political views. it has to do with long and historic tradition that the solicitor general's office has of representing the long-term interests of the united states government. >> then let's move back to the political hat. how are you going to take that off? >> senator, that hat has not been on for many years. senator coburn, i know that, you know, some people have said oh, she is a political person. i've had a 25-year career in the law. of that 25-year career, four were spent in the clinton white house. this was a period of time that i am produces of. and that i feel as though, you know, i helped to serve the american people for president clinton. this is by no means the major

part of my legal career. the major part of my legal career has been as a scholar and teacher constitutional and administrative law and many thousands of students has been writing about constitutional and administrative law issues. >> what do you say to -- >> you promise? >> i promise. >> what do you say to people that are worried that your political positions would influence your judicial positions? what do you say to the average american that is sitting here watching this right now? what assurance and, other than knowing elena kagan that, you know, we know who you are, we met you. we've read about you both positive and negative. what are the assurances do you tell the american people is you

can trust me to make a pure judge decision. >> i would hope they would listen to this hearing and believe it's all about law when you put on a judge's robe. it's not about politics. >> that is the only pledge i make yesterday and i'll make it again now. it is a fashion that respects the rule of law and a law that is reflective of law. and, you know with, respect,

which i don't think is partisan in the kinds of ways that people have suggested. >> can you understand why some of us when justice sotomayor toll us that her words were, i think i agree with you, senator coburn, we shouldn't use foreign law. she's embracing the use of foreign law on a decision. you know, we become skeptical because -- as i said earlier, and as i said at these hearings is that, you know, really ain't going to matter what you said. because once you're there, you're there. and we have very little ability to change it. and when we see histories and then we see statements that don't coincide -- quite frankly, you haven't done that to us, that i know of yet today. but you can understand the skepticism we might have. and especially in the fact that many on the other side of the

aisle, the implication has been that the same thing by alito and roberts that they weren't straight forward. that, in fact, they didn't keep their word on stare decisis. so you understand what we're battling with. that's why i'm not suure the hearings are a great thing. i think we ought to do it the way we used to do it. sit down and talk and spend a lot of time with you and get a comfort level where we feel like we really get to know you and what you believe and what your actions will be. let me go to one other thing. senator corn inattemyn attempte this. i think it's a really important question. if i wanted to sponsor a bill and it said, americans, you have to eat three vegetables and three fruits every day and i got it through congress and it's now the law of the land. does that violate the commerce clause?

i got one that is real similar that is equally dumb. >> i think the question of whether it's a dumb law is different from whether the question of whether it's constitutional. and i think courts would be wrong to strike down laws that they think are senseless just because they're senseless. >> the question i'm asking you is, do we have the power to tell people what they have to eat every day? >> senator coburn -- >> what is the extent of the commerce clause? we have this wide embracest commerce clause which these guys who wrote this never, ever fathomed we would be so stupid to take our liberties away by expanding the commerce clause this way. let me spend -- i got a little time. let me just read what you they

said. the executive branch and the judiciary branch wouldn't enforce their limited view of the commerce clause that, in fact, we needed to change the members of the congress so that they would. and let me read it to you. if it be asked what is the consequence -- >> i'm sorry, where is this from? >> this is the federalist paper. >> okay. >> this is number 44. >> i presume you read this book. >> i have. >> i thought you might have. >> great book. >> it is. actually, i hope you'll read it a lot as a justice if you become one. constitution, exercise powers not warranted by the true meaning. they're sitting there warning us to not do things, what you are going to do about them? i answer the same as if they should misconstrue or enlarge any other power vested in them as if the general power had been reduced to particulars and any one of these were to be violated. the same in short is if the state legislature should violate their respective constitutional

authorities. in the first instance the success of the u serptation will depend on the executive and judiciary departments. you become complaisant. you go the wrong way. i would make the case today that we find ourselves in trouble as a nation because the executive branch is not slapped congress down on the massive expansion of the commerce clause. which are to xpound and give effect to the legislative agts acts. and in the last resort, a remedy must be obtained from the people who can by the election of more faithful representatives know the acts of the usurpers. is it okay for me to write a bill having been duly elected about it people of oklahoma to say, and get it signed by the president, that you have to eat three fruits and three vegetables every day?

>> senator, first let me say about the federalist paper quote that you read. it is absolutely the case that the judiciary's job is to, you know, in march ds to say what t. and to make sure, i think i've talked about it as policing the constitutional boundaries and making sure that congress doesn't go further than the constitution says kit go, doesn't violate individual rights and also doesn't act outside its enumerated authorities. we live in a government in which congress' authorities renum rated in article one of the constitution and congress can't act except under one of those heads of authority. now as i talked about with senator cornyn, the commerce

clause has been interpreted broadly. it's been interpreted to apply to regulation of any instruments or instrument alts or channels of congress. but it's also been applied to anything that would substantially affect interstate commerce. it has not been applied to noneconomic activities. and that's the teaching of lopez and morrison. the court -- the congress can't regulate noneconomic activities, especially to the extent that those activities have traditionally been regulated by the states. and i think that that would be the question that the court would ask with respect to any case of this kind. i do want to say again that we can come up with sort of, you know, just ridiculous sounding laws and the principle protecter against bad laws is the political branches themselves.

and i would go back, i think, to oliver wendell holmes on this. he was this judge who lived, you know, in the early 20th century. hated a lot of the legislation that was being enacted during those years but insisted that if the people wanted it, it was their right to go hang themselves. >> okay. >> now that's not always the case. but there is substantial deaf rens -- >> i want to give you another can. what if i seed eating three fruits and three vegetable was cut health care costs 20%. now we're into commerce. and since the government pays 65% of all the health care costs, why isn't that constitutional? >> senator coburn, i feel as though the principles that i've given you or the principles that the court should apply with -- >> i have a problem with that. because if we're going to hang

ourselves and as our founders, three of the critical authors of our constitution thought the judiciary had a reason to smack us down and as oliver wendell holmes if we want to do stupid stuff, question do stupid stuff. i disagree. that's not activism. that's looking at the constitution and saying well we're going to ignore it even if it does expand the commerce clause because the commerce clause is what got noose a place where we have a $1.6 trillion deficit that our kids' future has been mortgaged, we may never recover from. that's not an understatement at all. in 25 years each of our kids are going to owe $1.13 million and pay interest on that before they do anything for themselves or their kids. so the fact is that we have this expansive clause and we have to have some limit on it. and if the courts aren't going to limit it within the original

intent instead of continuing to rely on precedent of this vast expansion of it, the only hope is that we have to throw out most of the congress. but the point is it's the original intent that you wouldn't ignore their original intent. and what we find ourselves today on the commerce clause is that with -- through a period of precedent setting decisions, we have allowed the federal government to become something that it was never entitled to become. and with that, a diminishment of the liberties of the people of this country both financially and in terms of their own liberty. >> senator coburn, i guess a few points. the first is i think that there are limits on the commerce clause of the ones i suggested which are the ones that are articulated, were articulated by the court in morrison and in

lopez which are primarily about noneconomic activity and congress not being able to regulate noneconomic activity. i guess the second point i would make is i do think that very early in our history and especially i would look to gibbons where chief justice marshal did in the first case about these issues essentially read that clause broadly and provide real defference should be provided to congress with respect to matters affecting interstate commerce. and i guess the third point is just to say i think the reason for that is that $1.6 trillion

deficit may be an enormous problem. but i don't think it's a problem for courts to solve. i think it's a problem for the political process to solve. >> you missed my whole point. we're here because the courts didn't do their job and limiting our ability to go outside of original intent on what the commerce clause was supposed to be. you can't solve the problem now. but you helped create it as a court >> tomorrow c-span airs highlights from elena kagan's supreme court confirmation hearing. we'll show you their q. & a, discussing campaign finance, executive power, and treatment of enemy combatants. that's tomorrow at