-- was called the people's party with everyone getting together with their ideas and no grandstanding. it would be the only party to get all done, that way. guest: many of the things she is concerned about look closely to the idea of numbers and lack of diversity. in the past there were many different immigrant groups and no one group dominated the flow. no more than half of all immigrants to come in our spanish-speaking. then there is the numbers issue. we take in an enormous number of illegal emigrants. . .

>> amazingly, he was writing about journalism, and not describing the elena kagan hearings. will make the discussion this morning more interesting than

the hearings were last week. a couple of reminders -- if you would please turn off your cell phones or at leasttsilence them. if you are watching us on c- span, you can e-mail questions the moderator for our first panel has been part of every event at the heritage organization. he is the director for legal and judicial studies here and has served in all three branches of the federal government and now serves as a commissioner on the u.s. commission on civil rights. >> thank you. i want to extend my own party welcome to everyone in the audience and in the cspan and heritage audience and on behalf of our center for judicial and legal studies. i had the pleasure of introduccng two of my teachers

and respected friend and if they don't provoke each other on their own, perhaps we will provoke them on their rebuttal. . i must give a regrettably short introduction relative to their achievements so that they could have more time to opine rather than be opined about. i will introduce them in alphabetical order and the speak . willdellinger is chair of the appellate practice and the heads up the supreme court and appellate practice clinic but it is a visiting professor of law at harvard university. he is on leave from duke law school where he has taught as the professor of law for many years walter served in many other instances in his career for the two most no moral -- notable was the council from 1993-1996 where he was my boss.

walter was also the acting solicitor general for the court's term in 1996-1997 when he argued nine cases before the supreme court which is the most a solicitor general has argued in over 20 years. i bet that is even a higher percentage than the solicitor general's novel. he argued the dc gun case on behalf of the district of columbia and the now infamous case in which he trekked justice souter into writing is supposedly activist protest corporate decision striking down and out regis punitive damage award on the maritime law in exxon bursa's becker. he won all of his cases he argued this year even if his win on behalf of north carolina is not as well noted as of yet.

to his left, but not politically [laughter] is richard epstein. he is a newly minted laurence a. tisch professor at new york university law school. the university of chicago law school where he taught me but more famously he was a long-term professor and acting dean and the former head of director of curriculum and law and economics richard is well known for his research and writing in a broad range of constitutional economic, historical, and philosophical subjects. he has written more than a dozen important books and articles and has edited some influential legal journals. instead of going into some of that, this will give you a flavor of the range of his expertise. here are the subject he taught at the university of chicago --

communications law, constitutional law, contract, criminal law, employment discrimination law, jurisprudence, labor law, property, roman law, eal-estate development and individual and corporate taxation. it was perhaps for this range of expertise that he was elected -- your bio is incomplete. >> left out -- you left out that he taught the same thing in every course. [laughter] >> richard was elected at a bright young age. the american academy of arts and sciences in 1985. greg garr has taught constitutional law and supreme court practice for several years at the george washington university law school. he was the 44 solicitor general of the united states and the only solicitor general to have served in all three of the

principal offices in that office. he was first assistant to the solicitor general and then principal deputy solicitor general and finally, confirmed by the senate unanimously as the 44th solicitor general of the united states. he has argued 30 or more cases before the high court. one of the most important in recent years was ashcroft verses ichbal, clarifying the pleading standard under federal law for a highly improbable claims that might otherwise aalow illegal fishing expedition in search of a cause of action. according to the point of, this is another outrageous activist decision of the roberts court that they want congress to overturngreg won his most significant case on behalf of

the university of hastings brought by the christian legal society for recognition as an official student organization. i wish is able representation had not been successful in that case but i think all three panelists may, -- may comment on that case.+ why don't you come up? [applause] >> thank you for that kind introduction and thank you all for joining us today. i am honored to be here today. i am sure this did not happen to any of my fellow panelists but when word went around that we would be involved in the scholars and scribes program today, i shortly receive a number of the mails from friends ?"ying, "a scholar dax scholar is a big deal for me. i thought i would start up by making a few observations about

the roberts court and the term this year. i will talk about a few of the major courses pendingg-- cases before the supreme court. i will also comment on justice stevens' departure. generally looking at the year at the court -- a fewwthings stand out. this is a big year for the roberts court and for chief justice roberts on that court. chief justice roberts was in the majorrty more frequently than any other justice on the court. he was in the majority 92% of3 he dissented it almost -- in almost only a few cases. the last most frequent dissenter was joseph kennedy. this eclipse or went past joseph

kennedy as the person in the middle in the majority of the most. to give you a point of comparison, justice stevens dissented 22 times this term. looking forward, justice stevens, the most frequent justice to disagree with chief justice roberts is leaving the court which one might think would lead to even greater unanimity or at least greater agreement on the roberts court. second, i think it is fair to say that the court this year was a conservative but minimalist court. it showed that it would walk tall but perhaps take baby steps. it did so in a number of cases in the free enterprise case, the court embraced a constitutional theory that held unconstitutional the four clause provision of the sarbanes oxley accounting board. it left the board in tact so it was a broad constitutional

ruling but minimalist results. the court declined to validate that statute across the board on vagueness grounds. the big exception what this -- was the citizens united case. third, the court seemed like a relatively happy place. we saw the fewest side court decisions in recent years, only about 18% of the cases were 5-4 decisions. last year, about 30% of the cases were 5-4 so that s a fairly significant decline. about 75% of the cases were seven-two or more so broad consensus in the broad majority of cases. in the more interesting cases, there were not consensus. i would like to talk briefly about three cases which i think

illustrate different things about the court agreed the first is the citizens united case corporate they are not afraid to go where it beliives police them. citizens united you all know about. it involved the constitutional challenge to a provision of the mccain-find cold finance reform act. in a nutshell, it prevented paying for adverrisements which mentioned a candidate in the cycle leading up to an election directly through their general treasury fund for the law allowed them to pay for those advertisements through a pac but the constitutional challenge was brought by a nonprofit advocacy corp. that produced the movie called "hillary the movie" which

was a fairly critical movie of the hillary clinton. they were going to broadcast it around for election. the election. the fcc said yes and they brought that case to the supreme court and the court in this 5-4 decision written by justice kennedy held the provision unconstitutional as applied to corporations. they sustained the disure requirements and a disclaimer requirements. one significant thing is how the case got to be decided by the court and what was significant is the case was set for 3 argument at the end of last term. the court then proceeded to overrule a couple of recent decisions. the decision in mcconell a few

years back. there was an austin decision that upheld -- that was upheld by the court in a similar way. justice kennedy had been an advocate in these kind of cases and the austin case. he had four other justices to agree with him in this case and he wrote the decision overruling the prior cases. the court generally does not like first amendment theories that it believes will lead to book bag which is one of the example that came up in oral argument. -- book banning which is one of the examples that came up in oral argument. what chief justice roberts said in this case was that there is a

difference between judicial restraint and judicial avocation. justice roberts has been very adamant and talking about restraints. it is on necessary to decide a constitutional ban is necessarr not to decide it. judicial advocation not to reach the important question that the court frrmed in this cas the second case i wanted to talk about was two cases and they weren't juvenile sentencing cases for these cases show the justice roberts was trying to find a middle ground with the court. that may explain why he is in agreement more with the other justices these cases involved an eighth amendmmnt challenge to the constitutionality of state sentencing practices that allow a juvenile to be sentenced to life without parole justice kennedy in a decision that repeated what he did in the roper case a few years back held

that given revolving standards of decency and other factors, reached a conclusion that it wa+ disproportionate and therefore unconstitutional to sentence to the miles to life without even the possibility of parole. justice says alito, scalia, and+ thomas vigorously dissented. he sd it was not constitutional -- he said it was not unconstitutional in a categorical matter but he would look on a case by case basis. he found that it was unconstitutional to sentence a particular juvenile prisoner but he would not rule out another extreme case that you could sentence someone without parole. the last case is the cos case.

it demonstrates that the roberts court does not always get what it wants. this is a 5-4 decision going the other way with justice kennedy joined by the more liberal justices on the court. this confirmed the ninth circuit and sustained the constitutionality of a public law school policy saying that any group of students that wants to join and become a school recognized and school-funded group is free to do so, but you have to admit all comers. this case was brought by a christian legal group, the christian legal society that believed that that opened membership requirement infringed its free-speech and exercise rights. i will now turn it over to our next panelist. [applause] thank you] >> thank you so much for that.

thank you, walter, for your peanut gallery remarks. [laughter] i woold talk about less of the demographics of the court but the substantive issues of the court. what gre said about the new roberts dissension between judicial restraint on one step -- and one hand and judicial advocation shows conservative jurisprudence between judicial activism and judicial restraint pretty difficult it turns out to be that there is no way you can maintain fidelity to two principal simultaneously. you can't do that at the same time that we see no evil and hear no evil because of institutional limitations thaa we cannot possibly intervene in these situations. justice roberts essentially took the old distinction and gave new

terrs for it and now judicial restraint is judicial activism and judicial abdication turns out to be judicial restraint. when he starts to see things that of fenton, he is prepared to intervene and my view is that he would be more comfortable doing so if he were candid that the constitution takes precedence over a bunch of statutes or a particular administrative ruling which does not have similar credibility. in order to demonstrate the way this works, i will talk about three types of cases3 i think they illustrate the attention's prefers is a case where i was on the opposite side, a case involving the christian legal society against the hastings law school with respect to the question as to whether or not they could deny the students of the christian law school. they were spences' bush's of

homosexual behavior and openly proud of it. -- they were openly against homosexual behavior and to openly proud of their was a question of whether they were prooected under speech or religion analysis should not depend on whether or not we believe they are right or wrong in what they believe. i would like to say about political beliefs that it is possible for inconsistent believed to be wrong and it is not possible for them to be all right. the substance in the way inom which we evaluate these kind of organizations. hastings did not agree with that. they wanted to deny them access to e-mails, meeting rooms, and formal recognition. there was a useless political wrangle as to whether thisswas done under a take all comers policy which would apply to religious groups but to every

group or under a barrel anti-%+ discrimination policies. that would say the organizations involved in this particular institution had to agree not to piscriminate on the grounds of sexual orientationnsurely this organization did. i have never heard of a less coherent, stupider, and less defensible policy. pusticc scalia said it was weird that the democrats have to admit the republican. it turns out that christians have to admit jews into their organizations. there is no question that if we looked at this as a form of direct government, the idea that the united states could make every private voluntary organization into a common carrier when the whole purpose of meeting together is to form a common coalitions seems to me to be nothing short of a banal observe.

at certainty. the supreme court agrees with this. they took the position sensibly with respect to organizations dealing with the intimate associations and a deeply held religious beliefs. it seems the next thing you have to do is to ask whether or not something which cannot be done by a direct correlation can be done by a state organization in terms of the way in which it admits and excludes individuals. justice ginsberg was correct when she said this involved a limited public forum she was woefully incorrect when she said that somehow or other you can impose the kind of regulations that you would never be able to impose by way of direct regulation. even if you take the stipulation that this was not done on a discriminatory basis, you would still have to say that the%+ statute was unconstitutional.

the two other cases i would like to talk about is one of them is that political speech case. the first amendment gives itself a strong presumption. the only way where you could have liberty of speech is to allow voluntary associations to get together in order to put their views forward. at that point, the question is do you for that this by the fact that to have limited liability? the answer to that question is no.no pair ♪ you have to look of the justifications and the dissent in cages in all sorts of idle speculation about the way in3

public life will pollute or drown out honest citizens in the way in which they speak. i have exactly the opposite are providing large corporations are congenitally cowards when it comes to the way they speak politically because there is a danger that the customers will abandon them and they know that political people have so many ways to put the regulatory screws to them. they have to keep a low profile. the thought that this will drown out speech strikes me as a kind of pop sociology which may be worthy of the president of the united states but is not worthy of anybody who wishes to do serious work on this question. [laughter] the third case i will talk about is the situation about the humanitarian law project here again hoplden. when you want to impose limitations, you have to show a

fairly strong justification. the roberts court got this thing wrong when it said that the only question they have to worry about is the fund's ability of resources. you give aid to a terrorist organizatton, they will do nefarious things. the fact that they were using money in peacekeeping operations is if you get people to the table it will have the opposite effect. it will take activities that were otherwise destructive and move them to things that are less destructive is that true or false? we could not find out in this particular circumstance because it was exactly the same problem you had in the movie case. the chilling effect was so palpable that this was brought to a declaratory judgment. we have no experience of these things should work. my own view is that the world is a dangerous enough place and i don't believe that every police

correct but i don't believe the state as a correct as well it very cautious before you have denunciations' under these kind of statues as to what is or is not appropriate conduct what is the common theme? the constitution was designed to enforce a system of limited government. here are three cases where the limits were an issue. i've read the score card as 2-1 in favor of the bad guys. citizens united was the more lucid decision. thank you. [applause] >> richard epstein and i have known each other for 45 years. during which time, richard has been remarkably consistent. he is a provocative boys in the

public discourse. he is one of the great debates among conservatives which was the debate between professor epstein and judge scalia par. what year? >> 1984. >> the issue was -- is the conservative vision of the proper judicial role one of judicial restraint as the been judge scalia somewhat ironically -- is the true view judicial restraint as he argued or is it a vigorous judicial intervention on behalf of rights of property and contract as or richard seize the vision of the framers. this replicated a subsequent debate between charles fried solicitor general and charles cooper during the reagan

administration. one of individual liberty or is it one of states' rights? when they are in conflict of one anoth and when states was to regulate the economy against congressional pre-emption? you see these fall lines and jurisprudence. i want to give you a brief overview of where i think the roberts court is on one important question and that is the nature of judging. i want to read a brief paragraph from mike for rape her colleague at duke university, jefferson palle, about judges. -- jefferson powell, about judges. in almost every decision, the judge will confront enter the choices which have multiple resolutions back unjustified by craftsman-like arguments for there is no algorithm that will result the conflicting claims of plausibility. a judge must decide in good faith.

a judge acting as a conscientious judge will use legal craftsmanship not to conceal difficulty but to render arguments to himself and others with candor including an overt recognition of the ambiguities and uncertainties present in the constitution's text and any resolution of many constitutional issues. constitutional decision making is a creative endeavor involving the creation of new law and not just obedience to existing law. judges of what ever radiological persuasion are far too inclined these days to write opinions as if there is complete search. certitude.

the way in which a justice or judge acknowledges the way the of resolution not be. easy. when i listen to justice roberts and will be -- will he be a minimalist -- he said that a judge's role is to be an umpire calling balls and strikks. i thought," all my goodness, that is a formula for activism." i know that is counter intuitive. the reason i say that is if you say to others or to yourself that your role will be to call balls and strikes, you deny your on agency in the choices you make. someone else is responsible for the decision.%+ you are just there to apply it. that makes you quite comfortable in setting aside the judgment of congress, the state, of local

governments, or of other actors sprers.. the restrained judges cannily recognize the existence of choice. the constitution often had ambiguities. sometimes it was written%on purpose this way. judges recognize the existence of judgment, of having to make ccoices. they have to ask themselves why are they justified in setting aside a choice made by congress or the state legislatures? the balls and strikes methodology gives you the confidence to say i am here to declaim. with that in mind, i think there is something of a mmxed role in terms of activism and restraint onnthis court.

the most dramatic example of each of these is the mcdonald decision applying the second amendment to the principles of the second amendment or the second amendment for the 14th amendment on the chicago ban on handguns. it is a cautious opening in in terms of result in that the court leaves open the question of what kinds of regulations may be consistent with the right to keep and bear arms and leaves the question open. even mcdonald was even more cautious in justice alito's decision. he held that the second amendment protects not the right to bear arms, the right to for purposes of self-defense.

we hold today that the due process clause of the 14th amendment incorporates the second amendment right heller.ed inhe justice stevens in his dissenting opinion says that this is a substantive due process case. he recognized there was a very strong argument that the liberty clauses of the fifth amendment and the 14th amendment due in the protect the right to self- defense and the right to possess a handgun in the home. the home has long been seen as a

center of insulation from the government. much of our constitutional tradition draws boundaries around at the home. that are quite particular part o. they would talk about the differences between the states, the great differences between chicago and the one hand and wyoming on the other. he correctly recognizes that this is a powerful liberty case. the second amendment, i think, is almost on the order of a trek, an amendment that does not actually address the state at all and of the fact that the

gun rights is very relevant under the 14th amendment but that amendment stands on its own bottom parem. i will and now with the statement that this is a very great time of constitutional conflict. as we saw a state of a union address. the president looked at justice roberts and said you're a bunch of political hacks and just as alito jumped up and said," you log." [laughter] ie." [laughter] i am kidding but that illustrates the court [applause] . >> thank you all. we will now have one or two rounds of exchange between the panelists and we will recognize

some of your questions before we have the order of presentation. if i might borrow one of iinore my request and it what youuwant -- walter is very interesting and had a worthy point that of judges pretend the act of judging his mechanical, it may hide their responsibility. this is the set of mcdonald opinions, i think it is 170 long and they are fascinating. the scully a rejoinder to stevens was," just because you fret over it and run your hands and say there are four important factors does not necessarily mean you are doing a better job." in fact, it may allow judges to do whatever they want. i don't know who is right

because i have no opinion. i am posing questions. without possible rejoinder g,reg, what would you like to add? >> walter raises an interesting point. alternately, the responsibility of the court is to say what block is. in that respect, i don't think that is what judges have to do. in many cases, you see the justices go into these polar camps. you would expect them to recognize a little bit more difficty in the enterprise. they are deciding the most difficult issues. they have already decided the lower courts. this term use of more recognition in the decisions, that there was some difficulty. justice alito in his mcdonald that there was some room for

debate on the history of the second amendment which i thought was pretty interesting. he called justice stevens' dissent in that case eloquent. you would expect to see maybe more of that. we see some of that on the court. i think it is also too soon to say whether citizens united really represents this game- changing moment in the supreme court or the roberts court or the better of you being a better development. i think it is too soon to say whether that decision is having the effect or says that this court is an activist court the way many critics have claimed. , a me respond to richard's about thecls case.

i am duty bound to correct some argument -- some of his argument. >> not in this forum. >> let mm tell you why he is wrong. first of all, the claim that this was a policy similar going outcls and the supreme court said it was a quintessential viewpoint neutral policy. how much more neutral could to get than saying all grrups have to admit all comers? this was a school that as many recognized religious student groups and previously recognized this group to comply with policy. the policy applied to groups favoring homosexual or gay rights just as it did christiaa groups. justice ginsberg explained this to say that this was a viewpoint policy.

i think that is just stretching it too far. secondly, richard talked about what a stupid policy this was part os. is it the role of the court to go in and second-guess what is a stupid or reasonable academic policy? is this something we should generally leave up to the administrators of the schools? if you go back to the other cases mo likerse vs. frederick, you see a lot of discussion from the justices on the importance of deferring to the school administrators. in this case they might not like the result as much but this is an unresolvable stupid policy that the justices to reject should strike down. there's a bit of a role reversal there. in terms of the question of state power -- one critical thing to understand is that

nobody was forcing the group to do any thing that this school where this was not the there was no prescriptive law that forced them to admit members. you don't have to become a school-funded group at hastings but if you do, you have to abide by the viewpoint neutral restrictions that they have on access which is to say that all groups have to admit all comers. the majority of the supreme court said that was constitutional. >> let me respond first to whaa was said to about cls case and talk about mcdonald. what i argued it was that the fact unconstitutional as applied

to substantive groups who have a viewpoints to express. i don't think you should force the christian group to force them to take in other students. it seems to me that the appropriate thing to say is that you could never impose this on them as an external constraint because the robbers decision makes it perfectly clear that matters of intimate association lead to discrimination policies. with respect that misery loves company does not show that the policy is good, it shows that a bad policy applied to different people is 10 times as bad as when applied to only one. for many years, liberal commentators said that the last doctrine we want to rely on with state power is the doctrine of the so-called right privilege

distinction. if you want to join in operation, you have to accept the conditions we impose. the entire law unconstitutional conditions has always said that the right privilege distinction does not work when you're dealing with institutions that have monopoly power over people or can tax them. we can't tax you for our tuition and other expenditures to support every other group but we won't support you in return. one of the truly disgraceful remark and the dissent was to treat this as though the christian legal foundation was asking for a subsidy. nobody was asking for a subsidy. the last thing you want to do when you're talking about matters in intimate association is to adopt a policy of deference with respect to political leaders. this is not a disciplinary proceeding. >> can i ask you a question?

you have long been an opponent of anti-discrimination law. >> yes, in private employment contracts. reasons. [laughter] would you say the same thing about ollie mcclon at ollie's barbecue. he wants to express a view point. the anti-discrimination policy precludes him from doing so. >> there is historical context that anybody who has to talk about things have to talk about them both. the great difficulty thattyou found with respect to all the

southern policies on public accommodations is a large numbers of people wish to exercise those of rights and admit black people in those ranks and found themselves firebombed by the complex clan. the regrettable situation at that time was whether or not you had an anti-discrimination policy which protected the freedom of association of some or whether you try to go on individual liberty without being able to counteract the use of private force. in this transitional period, i was strongly in favor of title to and from a opposed to title 7 where i think the political dynamics worked in the opposite way. this is a second best world. to the extent that to a private files on one hand and social rights and the other, you have to decide which you will have to yield. if you ask me today whether i would want to continue public accommodations law, it becomes clear they beeome more insidious.

that is like telling the boys get to they can admit and could they cannot. i am not a fan of their homosexual and exclusion property -- policy. above the boy scouts were correct when they tried to soft pedal the issue. i think that justice rehnquist got it right when they do not have to see it from the tops of the trees to make their policy. they have delicate internal issues and the last thing you wann to do is have a loss to which forces them to come down on one side or another when they might otherwise be able to straddle the differences by virtue of the fact that they like some things and do not lik+ others. you of modern public accommodation laws and disabilities and these are awfully harsh of the worst possible major given the kind of transfer payments they required for the last anyone to do is to say that you have an important state interest so association can be trumped by an antidiscrimination law. that is the role for a political

situation in which three people cannot associate. fr --ee people cannot associate. >> one more minute. >> i happen to think that the guy who argued mcdonald -- >> he is sitting on in this room. >> i know. he was right on that particular case. we are dealing with a regionalism and you have to make every word count. there's nothing about the notion of ai originalsm that allows you to do what justice melia did in this case. this is important because the only clause in the article one section 8 that actually talks about cooperation between the state and federal government is the militia clauses. these losses, about a system of

divided authority which is designed to allow the and militias to be autonomous at the state level but to be called uu into national service for limited purposes in cases of invasion. the recent use the word well regulated was referred back to that kind of division of authority very reason you use the words a free state is because one thing you were worried about in 1787 or in business by one state of another. there are many things in article one that deal with this independent of this. once you put this mass together, you cannot read this clause out of the thing and have it make sense. it tells us that the only place the militia clause does not apply is to washington, a d.c.. the second thing is that it'')s absurd to say you will use incorporatioo argument through any clause if what you do is you

have a clause designed to protect the states from federal overriding and turn around and say that protect citizens from their own states. originalism does not necessarily mean a alito says it means. the amendment of the states keep and bear arms it does not say to keep arms in your house for purposes of self-defense. if you go in for a dime, you have to go in for a dollar. if you do not, you are not doing constitutional interpretation. it is one thing to talk about ai originalsm and it is another thing to do it. i thought stevens got closest to a. the truth for once, walter was on the side of the angels [laughter] .

>> i am yielding a lifetimegreg. toreg. your big mouth *g >> richards response was very telling. the reason i think that hastings is neutral is that they don't care why. if you look at it as an anti- discrimination law, hastings does not care what you exclude one of the individuals on the basis -- on the basis of homosexuality or religion or military status, they don't care what leads you to that conclusion. the fact that the organization has a viewpoint objection to the anti-discrimination law does not make the anti-discrimination law itself entire viewpoint. -- anti-viewpoint. the issue was taken up to the

and i believe this may be one of the cases that was won by advocacy. this may have influenced the outcome. not meet hisoes time. >> it is an intellectual catastrophe of the first order [laughter] . go back to the situation in which we now have in all comers policy imposed by statute on all private organizations such that every religious institution in the united states by a f populariat has taken -- in the united states has to take in

all people. i cannot run an organization in an effective position if i have% people that disagree with my fundamental position for the group. the only all comers policy we have never had have been with that means you have to take all comers to sit on your air plan on was it turns on that their body odor is so foul that they will drive everyone else away. why would you do -- why would , aadnt to take a rolule carried it over to voluntary institutions is terrible this thing starts to become first amendment doctrine and the regulatory face. it opens up the world to the most incredible form of government tyranny. go back to reynolds against the

united states in 1878 on the question of how it is we managed to disenfranchise of the mormons. we assume that one man has to marry one woman and anybody else who does not is wrong. we would apply this policy to protestants and everyone this policy remains that the most fundamental tool for ferreting out abuse is not to be applied+ a. and more if you go back to the antidiscrimination laws, this would say formal discrimination only, due powwr is to be off the books for the fact that justice ginsburg did not understand what is gging on your shows that this is the kind of justice who can take a; and the constructed inn to period or colon. behind

procedural documents. i actually wrote my brief on the other side of this assuming they were talking about the all comers policy. i still thought was wrong. if i thought there was a single word in that opinion which explain the implication, i would sit down in silence, unaccustomed as i and [laughter] if you take the implications of this, freedom of association could be a dead letter because of the way in which state regulators want to go. i will stop there. >> let me pose to greg and walter. we have a grandfather clause. we have a literacy test which is. is neutral. we don't allow a neutral and permissible statute to apply if the motive was beyond that. go ahead.

>> richard doesn't like the the [laughter] sessio decision. one thing that conservatives have pointed to in prior cases is that because a law as a disparate impact on a particular group does not mean that it is viewpoint-based. the fact that eight neutral all have a disparate impact on some group does not mean it would be viewpoint-based on the supreme court precedents part of i think it's interesting to look at the history of the all comers policy. if you go back centuries into old england and you think of the scottish innkeeper, it was the case that the innkeepers were supposed to admit all comers. this was not something

concocted by law school in san francisco. there is an ages old historical basis for that pric. i don't want to upset richard too much. [laughter] >> you already have. >> this is a case of what a law school can do in the case of a limited public forum that has particular first amendment rules that the supreme court has long applied. the decision was very much focused on the standpoint of how we analyze this from the perspective of a limited public for. um. all students are paying for a particular forum. there is divisiveness that could arise if some students pay report were not permitted to join groups they wanted to join the school decided that the best

way to go about this waa to have a policy that said all groups who want to participate in a school for the policy should admit all comers. >> these enters increase my disquiet [laughter] you never want to have a public deeate in which the only thing you worry about is what liberals and conservatives think. there is an apt -- academic viewpoint. and if there is a third position, you have to address it. . am not one of them ver i went to great pains to explain the common carrier cases were covered by the all comers role because of the monopoly situation and because of thefungible nature of the services provided the only cases that talked about the common carrier situation also

understood and applied that limitation without exception. the most definitive statement was in 1810 in england where they said common carrier rules apply to all comers. you simply engaged in this kind of law history which does not go back and get the essentials with respect to the proolem. the third point is that the vvewpoint by the state and the impact is deferential. when there are disparate impact of a pronounced a variety, should we ignore those things? first amendment law has been good. it has not been in different.

and do you think we could pass a statute that says that every religious organization has to admit all comers regardless of their religious beliefs? would that be constitutional? you have to say yes. i don't believe that you believe that, frankly. >> i apologize for calling richard conservative. i did not need to apply a label to that. we have already talked about how it is focused on law school in this case in the context of a public forum. >> walter, unless you have a quick word -- >> all comers policy are not3 when you have seminars, it is, and that professorr have to admit to everyone or have a lottery. even if you have a student- organized seminar -- if you want to do a seminar in feminist

theory, you cannot limit it to women. at most schools. this is part of the university's own decision to say we will sponsor some groups but only if they are open to all of our students. >> can we and by some audience? [laughter] . .

>> all students were paying, including students who chose to

>> at do you and to express opinions? the plurality -- i saw one of your initial bloggers and may be corrected it where you said that there is no majority for the holding because the plurality

theories, but one thing you said there were five votes against due process and corporation which is correct. he said there is eight votes against religious communities. silent as to that but they obviously chose not to go there. >> my point is a simple one -- it is clear the decision is binding on lower court judges ii full and it is a combinntion of justice thomas'opinion and for other judges that means that the court judges will -- a lower court judges are down. as a matter of precedent, a future supreme court justice can say i have to find a theory, i have to adopt a theory as to why

subject to heightened judicial scrutiny or whatever. the question is if i look to the due process liberty theory, only four justices adopt and five others, including justice thomas, emphatically reject it. if i let to the privileges and immunities theory, only one justice but opposite. there may be others who are precedent of agreement so that if i agree with the analysis of the majority of my prior colleague, i would not find there is anything i am obligated to give presents to. i just meant to suggest, for better or for worse, that the split in theory makes it somewhat shaky in terms of the president since the justice can say i agree with the majority of

the colleagues on each of the two theories, in which case, i come out the way. >> walter's point is stronger than he knows. >> i'm sure many of my points are stronger. [laughter] >> there is a case decided in 1998, a case in which there weee four justices who felt this retroactive legislation -- justice kennedy thought it was due process. it did not matter that the elements of the two casss were exactly the same. everr lower court which dislikes the ability of the supreme court to limit what congress can do has pointed to the four-one split and said we have to read the decision airily. the lower-court becomes a construction issue and it is a supreme court case and when you

look at the, they say this sort of law but they never find another case where they can apply it. judicial nullification issa common feature in modern litigation. >> i agree it is a possibility -- >> it is a certainty. >> it is may be a certainty but the ninth circuit will read it the way it wants. the supreme court said the equal protection clause applies to states and then they said they are the same thing. >> with racial segregation, it's like public accommodation -- all bets are off. this case in 1955 said the equal protection clause which is in opposition to the due process clause and the 14th amendment is part of the process clause of otherwise it's exactly the same problem you have with a pellets. the of the district of columbia with the unique judicial ssatus

and it cannot be bound by. it was a joke. they understood it. as my daddy used to tell me, sometimes when you're making important decisions, you have to learn to rise above principle. [laughter] >> maybe we have time for one more question. >> i'm just a retired old geezer. in 1884, just as matthews writing in said "absolutely nothing in the -- said absolutely nothing in the 14th amendment out of its own words could bring forward against states the first eight amendments which weee designed

as restraints on the united states. that got broken a little bit in 1932 and after 1947, the dam broke and one by one by one by one, everything piecemeal in the first eight amendments has been applied in the states. has anybody on the court reccntly in the name of the constitution as opposed to constitutional law, has anybody tried to dredge up antiquity in this way and say wait a minute, we have been off course for a while? >> justice stevens says a bit in his dissent in mcdonald. i think the justices' opinion in that case was right. i don't believe in in corp. and think it's largely an academic mess -- at academicmyth.

we know the bill of rights applies to the federal government. that has never been challenged. the question is whether the 14th amendment inc. the bill of rights by -- that was rejected in 1947. the court has never gone back on that. the 14th amendment was -- nobody has ever disputed that. it has been decided that the first amendment is inc. -- in 1926 and applies, but the court says no such thing. the court does not say the first amendment is incorporated, its as freedom of speech is part of the liberty protected against

state interference by the 14th amendment which stands on its own bottom. it's a useful datum when you are deciding what the content of liberty is or if you take thomaa'approach that content approves immunity, at a foundational point in our history, we wanted to restrict the federal government from interfering with a right. if i think assisted suicide is an important right and you think freedom of speech is a right, he has on his side the framers thought you need to put an amendment and to restrict that i have no such amendment for my right. in the procedural cases in the warren court, they adopted the procedures of the bill of rights as a way of getting content to some kind of law applied to the states where there is no loss of four police practices.

but i think this is a due process case and every first amendment case against it and local governments is a substantive due process case because the 14th amendment stands on its own bottom. >> privileges and immunities as an imperfect overlap to some of the guarantees in the bill of rights. if that had been read, you not have had in corp., you would have diiect application. slaughterhouse comes along and to get to do process. the due process clause has no substantive functioning cannot include the first men aad+ because that's ever protection. -- first amendment because it has a separate protection. the all-purpose of the 14th amendment exercise -- water finds its best level and goes into process. everybody knew attacks substance

on the process, it's just a question of what is you want to incorporate and white. >> join me in thanking this first panel. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010]

>> he has written about and taught constitutional law and has a good deal of journalism experience which makes it thing he would oppose this panel. he has published articles in the "wall street journal" and others and is regular contributor to the national review online. he spent five months in iraq writing about issues raised by the war on terror. i will turn the battle over to him. >> i will not waste too much time on introductions as i'm sure we want to get to what they

have o say. we're pleased to have a distinguished panel here today and pleased they were able to make it. being supreme court journalists, they were at a reception for justice stevens at the court and were here to participate and we appreciate their efforts to do so. i must say at the outset that gen crawford was pulled out of town at the last moment and was unable to be here today. she extends her regrets and ensure is watching on c-span. robert burns has been a reporter and editor for the "washington post" for more than 20 years. he has covered politics and government since -- and since november of 2006, the supreme court. he served as the deputy national political editor at metropolitan editor and return to reporting in 2005 as a reporter and columnist and began covering the roberts court. our next panelist is a senior

writer at the "wall street journal" and a lecturer at the years the of california washington center. -- university of california washington center. he received his doctorate from the university of california berkeley. with that, robert barnes. [applause] go ahead and speak for about five or eight minutes and we'll open it up to the audience. >> maybe it can be a little less than that silicon answer questions. i thought this was an interesting year at the court for a couple of reasons. obviously, citizens united was a big decision for the court came early and in a way seemed to effect everything that happened afterwards, both the public view

of the court a little bit and the court itself, obviously, the state of the union shout out to3 in the tenor of the rest of the term and the public debate of the court. i thought this was the year we saw some movement between chief justice roberts and justice alito who had voteddtogether very closely the previous years and still voted closely this year but there were obviously some cases in which theyywent their own ways. i thought hat was interesting. thought this was a year in which you saw a number of unusual alliance among the justices. criminal cases are always ones

where the usual ideological differences did not break down the usually do. i also thought this was a very aggressive court. i don't understand what people mean exactly when they say an activist court, because i think it is in the eye of the beholder. at least the way that's always the way it seems to work out through reporting. but there was an aggressiveness to this court that was interesting. i thought the way that it reached out to stay the telecast of the same-sex marriage trial in california was interesting. i thought the way it jammed into the arizona public campaign finance law while the election was ongoing said something interesting about the court.

i think it reaches out to take cases that times were you didn't see the usual circuit split that you might look for before the court takes a case. so i think it is a court that is very active and aggressive in that way. i woulddrather answer questions than talk. >> i would like to join roberts opinion about the court, but just to ask -- just add some details, justice brennan famously said the most important role of the constitution was the rule of five. since that's how many votes you need to have a majority+ decision. but this year, as in previous years of the roberts court, we of seen that for the conservative-leaning wing, there are often several paths to get to 5. we have not seen the real

cohesion among the more conservative wing akin to what you see on that the liberal wing. for inance, justice alito and the chief justice of split on another -- on a number of issues. we look to the case of animal cruelty videos and saw justice alito as the sole dissenter "videos. when we saw the decision involving life without parole for juvenile offenders, we saw the chief justice joining in the judgment on that case to strike down a life without parole sentence with justice alito dissenting. likewise, we found that in the case involving the takings claim against the state of florida for its nourishment program,

although the court rejected the takings claim in that case, there were four votes, to find the concept of a judicial taking to be constitutionally [unintelligible] while justice kennedy was not prepared to join the finding. although the court in many instances does reach decisions that many conservatives favor cannot agree on the reasoning behind those decisions to give a clear direction to lower courts. in addition to the citizens united decision, the term ended with some major cases. the biggest one was the mcdonald versus chicago case, striking down the gun ban in the city of chicago. that case, like citizens united, was like watching a train coming

down the tracks for a very long time. nobody was surprised by the decision since it was for told quite clearly by the d.c. case earlier. same thing, the nature of the hearing in the citizens united ordered a rehearing to address a question of its own devising in that case. it signaled a very strong likelihood of reaching the result did. even though, mcdonald like citizens united, had a big impact in terms of litigation. mcdonnell will have a bigger impact in the lower courts as we are already seeing challenges to very local ordinances on weapons to be worked out by lower courts over the following years. otherwise, there were a few notable eccentric moments this

term that we tend to magnify because what ccunts as eccentricity at the supreme court may not make a ripple in other fields of coverage. but the decision t close the front doors to the public entrance earlier this year, ostensibly for security reasons generated a published dissent by two justices -- as thh kind of internal dealings we don't see exposed. that showed perhaps a perraps a hint -- that showed perhaps there is some discord that goes on within the stores or perhaps not, but in he rehab project for the court building, security officials, as they tend to do, wanted to secure everything, at the tops of -- at the top of the steps. apparently seven members of the corps were willing to go along and to members thought it was a badymbol to put out there for the public that the doors were shut and you have to go when in

through the ground level floors and not up the steps. we see the departure of justice stevens, that is the last time you'll see me wearing a bow tie, being today, since we had a farewell breakfast scheduled for the peanut gallery, as we are at the port. -- at court this morning. the departure of the longest serving judge might mean what the likely successor being elena kagan joining in the fall. otherwise, i'm eager to hear what is on your mind s well. >> i will take the moderator's privilege and ask the first question. i will note as is our custom that the first question, we will

give the prior panel an opportunity to ask any questions they might have. but i will lead off. for those of us who watched with some degree of some ambulance, the recent elena kagan hearinns, a frequent refrain heard from one side of the aisle was the activist, pro-business roberts court. you have written a piece awhile back which i cited in testimony saying that the robert scored defies a pro-business liberal. has the court maintained a series of cases that might earn it a pro-business label? is it fair to call an activist, pro-business court? >> i think it is a pro-business

court. i don't know that it is an ideologically divided pro- business court. i think a lot of the decisions that come out are not 5-4 decisions on a lot of it. if you take with the chamber of commerce cares about as a way to look at corporate issues, i think you cannot say those -- those are 5-4 decisions for the most part. there are some big exceptions. there were a lot of employment discrimination cases this year that the court decided in favor of the plaintiff. those were cases that corporate interests were quite interested in and did not come up with it wanted. i think the citizens united decision, with the president's

remarks and the partisan divide you see in congress, that is the loud voice in this. partly for political reasons, it works well for democrats to promote that image. >> if you ask the chamber of commerce if it is a pro-business court, they will cite a list of decisions where they did not get what they want. so the mainstream business community or -- they did not get what they wanted. there is a strain of employment cases where the court voted quite consistently for the plaintiff or the employee. those are retaliation cases, a subset of dissrimination cases where a person who is not the actual victim of discrimination is punished for pointing out

discrimination. they file suit under the civil rights act and whether those retaliation cases are permissible, the court as summit generally are, to the dismay of the business community. on the other hand, you can look at other cases and see how the court's majority is waiting the varying interests. one case the critics of the court bring up a lot,,one which was nullified by congress is the lead better case involving how to calculate the time limit from the act of discrimination that would permit someone to file a discrimination lawsuit. the majority and the dissenters -- this was a 5-4 decision along the traditional split, highlighted different aspects of the governing statute. for the majority, they emphasized the congresssonal aim to resolve these kinds of

disputes outside of litigation, to informally resolve them and use mechanisms within the workplace that makes it easier to run a business, that was the reason congress imposed was usually a 180 day time limit for filing a discrimination claims. from the point of the dissenter, that wasn't the point. the plan was to create a remedy ffr victims of discrimination. there is a time limit but it has to be construed from the first visible act discrimination or the last consequence of the act of discrimination. so they focused on a different aspect of the statute and waited more in the iisue of the purportedly discriminated against employee. if you ask if it is a pro- business court, if you look irrational the court sites in

matters of interpreting statutes, it gives a clue as to what priorities are more evident to the individual justices. >> with that, i will ask if any members of the last panel have questions. >we are surprised to see richard's hand. >> one of the interesting features about citizens united is the florio legislative proposals to implement the second generation of restrictions after the first one goes. this includes things like having to but the name of the ceo and various organizations and public places and lord knows what else. it is very clear there's not a single person in favor of these restrictions to actually supported the original decision. the same thing happened in mcdonald where you see the mayo3 cannot do this. now you have to get inssrance

for guns and inspections, but the question is when these things come back to the next generation of jews were hearings, bought 1 take into account the -- the next generation of these hearings, off one take into account, take into account the decision in arizona and grant the preliminary injunction on the ground given the motivations are so clearly indicating the antithesis the supporters of the bill have to the constitutional decision the usual presumption in favor of constitutionality ought not apply. that's one question. the second question this ought this information to be taken into account when you pass on the constitutionality of these things? this looks little bit like the same kind of massive resistance after brown vs. board of education. is that parallel overdrawn? >> we're not in the business of

saying what the court ought to do or ought not to do. i think we can try to describe it a bit. i think we can go back to see a parallel quite recently in the decade just past where the court issued a number of opinions involving the rights of detainees at guantanamo bay. i think you found there that the bush administration did not accept the reasonnng and foughh vigorously against those opinions and basically complied with them to stay 1 millimeter or inch on the side of defiance of the court's opinion, doing everything possible to frustrate the court cost point of view. this is not an unusual response for the losing party to find a way to get as much as a can within the four corners of the limits the court has prescribed.

the court is striking a balance somewhere in the question is do these remedies -- are they inherently suspect? i don't think the court will consider them to be inherently suspect. i think it will look at them carefully because they come in the wake of these constitutional decisions. look at the citizens united case. the court majority there cited disclosure as an acceptable burden as opposed to a restriction. when you look to the decision that came at the end of the term, the case involving the siinatures, the ballot initiative signatures in washington state, court said that despite fears of political retaliation against individual voters for taking a presumed political stance, we are not going to create a constitutional rule that prohibits disclosure.

since the court has indicated that disclosure is a way to mitigate what ever perceived bills are involved in secret of political activity, i don't know those disclosure act will be struck down unless they are so clearly pretext for an outright- restriction. i don't know what the text of those bills look like right now and whether we can say but they are. >> i think is interesting in mcdonald while we did not expect to learn more, two years later, the corps was unwilling to go any further in saying what kind of restrictions would meet their test. it seems to me the court often is deciding the case nearly of letting the litigation come. once in awhile, you will get a

dissenting opinion that talks about all this does open up more lawsuits. justice thomas has written one and chief justice roberts did in the caperton case. they bypassed the details to get to judgment in the first case and but it go from there. >> greg or walter, did you have a question? >> i was wondering if you have any sense of whether there will be a fallout either of the side of the white house where the court from a comment at this -- the comments from justice toledo at the president? -- justice alito and the president. >> i get the sense there are some hard feelings from that. to lead to. what that's going i think it is what happened

since then as well. i think the president goes out of his way to criticize the court, as he did when justice stevens announced his retirement and as he did when he nominated elena kagan. i think there is definitely something there that's going to play out. how exactly it plays out, i don't have an idea, but i don't think each side thought the other is doing what it's supposed to do. views it as a winning bit of political imagery for itself. they have not all backed away from it. if one asks questions of the white house about that instead, they will simply recite their view of how wrongheaded the pitizens united decision was bause they believe that crystaalized a lot of the democratic criticism of these

alleggdly pro-business decisions the court has made. but it eems within the court itself, some justices do have hard feelings about it. they do not deny the president or anyone right to criticize them, but the focus of time, place and manner of when the line was littered. we find these rather remarkable discussions about how many years of precedent were or were not overturn that whether you want to count state laws dating back to the progressive era as being also overturned or whether it's just a provision of the taft hartley act or -- there's a lot of microanalysis of that decision and it shows it did touch a nerve in a way that a lot of court opinions to not. -- a lot of court opinions do not. lot of democrats on the judiciary committee gave -- believe it gave them a chance to

see is a line of rhetoric that republicans like to use -- the concept of judicial activism. whether there is anything beyond a waahington story and it actually has an impact on how people vote or consider the court or consider how the judiciary functions, i believe experts believe that time will tell. >> while i don't think you can take much from the actual comments that people make on articles that i write, the two articles i wrote about this one, the one about the state of the union and justice alito and then when the chief justice talked about the state of the union at his speech at the university of alabama, they were the most commented upon articles i have written about the supreme court. i think it is an issue that got

to the public in a way that a lot of supreme court decisions to not. >> i'm going to step out of my moderator shoes for second. i think it is interesting. the question reminds me of what a judge friend oo mine said as general vice to oral advocates. the first rule of advice is don't insult the mind you seek to persuade. many people have focused on alito's response, but i think it's far more telling to see what the response from kennedy is as the first amendment is something he has marked our as a key aspect of his jurisprudence, and given the president's frontal assault, adds interesting to see whether he takes it as a personal affront.

>> having followed the court all term, what was the case or cases that most surprised you in terms of how the court came out and do you have a sleeper case from the past term that we were not following but you thought the decision was significant? >> one case that was surprising but falls into the dog that did not bark category was a case involving business method patents. pat and are provided under the original constitution and the patent right, what does that extend to? to what degree does it extend to processes as opposed to gadgets? the federal circuit court created a fairly restrictive test about what kind of processes would be protected and

the supreme court tookkup on review. this area would get a fairly detailed prescription from the suprcourt about how to go forward because processes can refer to things like software or biomedical engineeeing there was an iiportant need for clarity as to what is protected by patent at what can be protected with other intellectual property law. this came against the backdrop of the supreme court moving aggressively in the patent area, overturning the federal circuit time and again in cases where the lower-court hears patent appeals add other specialized areas of law had weighed the balance too heavily toward patent owners and not enough toward permitting dissemination of new ideas. judging by the number of

attorneys at law firms to have publicists who seek to have them quoted in articles involving the large community, it turns out, that was the most important case because i'm sure bob's e- mail crashed with all sorts of offers for third-party experts to talk about this decision but instead the decision was nothing. the court held that the particular patent which was denied by the patent office and the federal circuit and+ ridiculed by the justices, even justices who were not sure about the difference between rrdio and television and other more recent inventions [laughter] that patent remained valid. it wasn't good enough. the end. in terms of something that could

affect the economy and could affect the way high technology firms operate was significant in its insignificance. >> i thought there were a couple of cases this year, and maybe i was wrong to have thought this, but i thought we would learn more when they came down that we actually did. the case about the cross in the desert i thought presented some interesting issues and it did have a very complicated and twisted legal journey to get to this point and the justices seem to focus on that more than they did the constitutional questions that arrse out of it. i may be expected a little more from them. i was a liitle surprised also on the case where iffyou read the

concurrences and dissents, you see an interesting dynamic at work and a lot of conflict. but the actual opinion did not really reflect the. i think it was not the best legal vehicle to decide those kinds of issues bbcause the court below did not look at the question we were interested in. i was surprised by cls. i think it's way the court in a way i felt surprising. -- i think it swayed the court in a way i felt surprising. >> let's go to quessions from the audience. give us your name and affiliation.

please wait for the microphone. >> this goes back to richard's questions about the disclosure requirements. you said quite correctly in your answer that in citizens united that disclosure is in principle ok, but what our requirements for the purpose seems to be to actually chill speech? whee that are and -- in that fall under naacp verses alabama ban -- if the real goal is to prevent certain kinds of corporations from speaking, that seems to me different from a genuine neutral disclosure requirement just as when the state of alabama made the naacp disclose so -- it was clear the purpose was to prevent the naacp

from engaging in a speech activities. what the think about how that will be held going forward given the presence of this kind of motivation? >> it is true that some of the sponsors of the coins in named disclose act do want to chill speech. senator sccumer and other -psenators who held a press conference on the steps of the supreme court made it clear that they want corporate ceos to think twice before dumping tons of cash to elect or defeat candidates. the question is, thinking twice, what does ttat mean? does that mean i'm going to have a cross burned on my lawn and my children will be pelted with a good school or just the thinking twice main consumers to hhve a going to buy, shareholders have

a choice about voting their proxy's are which shares the want to buy will know more about what this corporation is doing and can take that into account when they make purchases. i think that is probably more whaa he had in mind than the kind of raw intimidation we saw goong on in the 1960's. whether that is relevant to what the supreme court decides, we hear some say that all that matters is attacks on the statute. we cannot say what the motivation is from the 535 murders of congress when they -pvote for it. i think you will find a searching look there and if the court says disclosure is ok -- the voter having a chance to know what interest are behind

the advertisement. that being a little different than the naacp case where it was the state. the naacp to leave in the center -- in this instance, when voters are told the committee ffr -- the hurray for everything committee is sponsoring an ad that it is actually the good people of bp, the senators sponsoring the bill think voters should know that. i do not know the naacp was funding political candidates secretly in alabama or in some way launnering its funds to prevent people from knowinn thaa. i don't know how applicable that analogy is. >> i think it is an interesting question that the court has not quite gotten to, the issue of harassment and the issue of disclossre for harassment. it seems like that is a coming

theme, but they have not wressled to the ground yet. >> thank you. one of the more interesting opinions i saw, interesting because it was so unusually hard to decipher, was in the case of the juvenile justice parole case. chief justice roberts wrote a separate opinion. he did not join the majority in its reasoning, where he basically said this may or may not be unconstitutional, depending on the circumstances. it was a real mishmash to me, logically, trying to figure out

what circumstances would or would not apply in terms of his few of when life without parole for a juvenile offender would or would not be allowed. i'm going to ask someone to talk about his opinion in this case, not just for what it says about this case but what it says since his opinion was not dispositive because kennedy's was. what it says about hissapproach a overall too bright line rules continually come back to the courts again and again where the judges or justices and up splitting hairs on does that make sense? >> up with a very interesting decision also because if you

come down to it, he thought some crimes sounded really horrible and so the person should stay in jail for the rest of their lives somewhere not so bad so they should get a crack at getting help of jail. i thought it was especially interesttng on his dissent were he was -- he had a list of 40 qqestions that a judge would have to go through that this decision raised because the was no real rule and he thought it was a terrible idea. he thought was going to raise all sorts of the implications -- during the oral argument, that was his line of questioning --

shouldn't will be that the judge has to somehow certified he has taken into account the juvenile 's age in making the decision to justify this in some way. that is what he and the up writing. >> this was a case from florida which has approximately 150 juvenile or so sentenced to life without parole for crimes that are not homicide crimes. most of them are in florida for pome reason. in this case, it was a 16-year- old robert -- a 16-year-old robber who ended up with a life without parole sentence. this was the case the court acted upon. is it flat out unconstitutionall to impose such a harsh sentence?

it is true theemajority opinion by justice kennedy took what we can look at as the traditional way the court has handled these cases involving the eighth amendment ban on cruel and unusual punishment. is it cruel or unusual as measured against the evolving standards of decency that marked the prague -- mark the progress of a security -- mark the progress of a maturing society? the majority held that it did, using its methods of counting how many states impose these sorts of penalties and with the trend line is and so forth. the most interesting opinion was, because also unexpected, in its reasoning even if it was telegraphed after oral argument, was from chief justice roberts who wrote the concurring opinion who said it was too hard for

this one guy but maybe it's not too hard in the general to impose life without parole. the broader aspect that it raises and this is what i think is interesting is that the court has not lloked to what they call proportionality in eighth amendment cases. it has not look to the terms of years, how many years someone is sentenced and measured that against the prohibition on cruel and unusual punishment except in the rest of instances. as a result, you have decisions upholding the three strikes you're out cases where the third strike might be someone stealing a few videotapes or a slice of extraordinarily harsh sentence. the court does not want to get into the role of second-guessing legislatures on how many years is cruel and how many years is just shy of kroll and how many

years is unusual and how maay are not that unusual. the chief justice's opinion suggested that maybe there is room for the court to be making those kinds of evaluation for coming up with some method for lower court judges to begin looking at that kind of proportionality estimate in deciding whether a term of years as cruel. until now, as only looked at whether death is disproportionate to the crime, 100 years or 10 years is proportionate to the crime. >> picking up off the last point since we only have a couple of minutes left, i'm going to reclaim the moderator's prerogative and sees the last question for myself because i couldn't let you leave the panel without forcing you to put on your prognosticators have to see -- prognosticators hat to

see if to change when justice is to change the entire supreme court. what issit you might foresee that might change with the departure of justice stevens an+ the addition of potential justice ellen occasion? what clues might we have gotten from the hearings? . .

there was a lot of talk that social -- sotomayor, because of her back as a prosecutor, would be tougher on criminal defendants then perhaps souter was. i do not think we saw any evidence of that at all during this term, and we throw in the usual disclaimer that the first year does not mean you can predict that, but i do not think we saw that anywhere. as far as how the court changes it changes a lot.tevens, i sink- he really was the leader of that side of the justices, and it is sort of inside baseball to a great extent, but who gets to a

sign the opinions that are risen -- written? -- i think it changes the dynamic of the conference, what some people have talked about an order in which the justices speak and lay out the cases, so exactly how to changes i think depends a lot on the cases they take, but i certainly think it is a big change. >> i will -- because of the convenient scheduling of the confirmation hearings to the conflict with the last date of the supreme court term, i missed the first two days because i was covering what the court decided, so i cannot say i know everything that elena kagan

said during a hearing, but two things that i did note are perhaps was watching for the future. one was that she was more pointed than i would have expected in criticizing the congruence of proportionality test of justice kennedy. this is one of thess terms that the court sometimes invent, and it goes with when congress exercise is one of a specified powers under the constitution -- say, to protect their right to vote or protect due process of citizens or what have you under the 14th amendment or the 15th amendment -- the congress can only exercise powers that the3 proportional to the enumerated powees, basically meaning congress cannot do whatever it wants. it can only do what justice kennedy, if he is in the

majority and the chief justice is not, should -- things they shoold do. i think it will be interesting to see how she addresses some of those enumerated powers cases when congress is alleged to have gone beyond a specific grant. that may come up when we see the voting rights act challeege in the future, which i'm sure it will be. for the short term, i think the most interesting case to watch likely justice kagan in is the case of snyder versus phelps, involving the west grove baptist church, a church that expresses its phase by picketing funerals of fallen service members with bogor placards -- vulgar to america tolerance of gayath rights, basically, and posting online the vicious attacks on the parents of the debt service

members. the fourth circuit court found that the church had a right to do that, and that is now on appeal to the supreme court. elena kagan at several points during the confirmation hearing criticized at one point or when the supreme court created a very high standard for libel suits by public figures. she said at several points that she thought perhaps that standard was too high. it was that case which informed the fourth circuit decision in snyder versus phelps, so i think it would be interesting to see what her interest is in speech and press cases and how she draws the balance in the future and whether she draws it in a different place than justice

stevens might have. you take that into account as in citizens united, which for most of the court was clearly a first amendment case, but also the u.s. versus stevens case, the animal cruelty videos where the breeze that the united states filed took a very broad view of congressional power to suppress speech if congress felt that its social value was negated by ts social cost, a position that was really not necessary to defend the statute. that sentence was called out by the chief justice, joined by being in open court startling and dangerous." again, we do not know if she wrote that sentence and we do not know how clearly it reflects her own views, but it is not consistent with the position she has taken on speech issues in

the past. p- being "startling and dangerous." it will be interesting to see whether her views are ll for told by what she said at the hearing. >> all right, which is that, please join me in thanking the panel. [applause] -- with that, please join me in thanking the panel. [applause] and thank you for attending. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010]

>> you've been watching a review of the 2009-2010 supremeecourt term from the heritage foundation. a reminder -- for more legal program, check out our legal program, "america and the courts." we look at various issues from supreme court procedure to index the discussions on the biggest cases and decisions. it airs every saturday at 7:00 p.m. eastern, 4:00 pacific, here

on c-span. >> before the senate judiciary committee votes up or down, watch the entire confirmation hearings for supreme court nominee elena kagan, including her testimony, questions and comments, and all the witnesses online on thee -span video library. is washington your way. >> one more about the nation's highest court from those who have served on the bench. read c-span's latest book -- "the supreme court: candid conversations of justices, active and retired. now available in hardcover and also as an evoke -- ebook. >> our live coverage continues in about an hour with the group campus progress. and today speakers include the former environmental adviser to president obama as well assthe deputy white house chief of staff. that gets under way at 1:00 p.m.

eastern here on c-span. >> the date the homeland security secretary was interviewed recently at the as and security summit. she explained the role of dhs and what is working and how improvements can be made. moderating was c-span's homeland security consultant. from aspen, colorado. this is just overran hour. at ibm, we are pleased to be an inaugural sponsor of what promises to be the leading counter-terrorism for annually.

the real value of an event like this is in the discussions. and the ideas those discussions create. at ibm, it is our path to support and implement these ideas, as i know it is for many of you. the aspen security form alliance profit with our commitment to help secure our nation and provide leadership to help lead a small planet. my colleagues and i are participating in events throughout the course of the form and appreciate the opportunity to be able to -plisten, to learn, and to engae with you in these important discussions. this morning, we kick off the event with a discussion with the deputy secretary of the department of homeland security. she has more than 30 years of military and executive eeperience in the united ssates government, and prior to joining dhs, lute serred as the assistant secretary for the united nations. and the national security funds

is that under ppesident george h. w. bush and president clinton, executive vice president and coo of the united nations foundation any better world fund. she also had a carnegie commission on preventing deadly conflict and was the senior public policy bellow at woodrow wilson international center for scholars. secretary lue is a -- lute is a thoughtful and engaging leader and we're fortunate to have her. jean came to aspen last night from toronto wherr she was covering the g 20 summit. well we expect energetic debate through the day, i hope you will keep my commitment today that the police will not be required. she is a correspondent for cnn, covering home as security for the network. she reports for their washington-based american bureau, a unit that combines common security, justice, and national security needs to

examine the state of security in united states. she was part of cnn's peabody- award-winning coverage covering hurricane katrina, for writing reports of the devastating flooding and also reports with two cnn security was specials as america prepared lessons of hurricane katrina and as america prepared the next disaster. covering homeland security since 2001, she reported on the nation's ports, chemical plants, airports, and borders. p> thank you so much. who would have thought the lead story today would be about russian spies? bit of a time work for us -- time warp. i know you can from the gulf were you have been dealing with matters related to the oil spills. how much has that distracted or degraded the department put thh counter-terrorism efforts? >> i would say not all.

the department fundamentally believes that finding terrorism -- fighting terrorism is job one. the challenge that we have in responding to the spill and overseeing the effort to clean up this bill, to ensure that the well is capped and to hold the responsible parties accountable is one that we take on as part of our responsibilities at homeland security,,but as many of you know -- and many of you to know about the department -- it has a wide wingspan of response abilities. >> but a limited number of people. has it not have some distracting impact at the very least? >> distracting is not the right word. we are able to manage more than one thing at a time. i wake up every single day, the secretary wakes up every day thinking about the main challenges we face in homeland security. we have just come through a yearlong examination intensively

of what it means to talk about one of the things about the department after its founding an extraordinary work of the men and women is that this department is 7 years oldd eight years old now. it is not one year old for the seventh time. there has been an accumulation of knowledge, experience, expertise consolidated and able now to clarify what it means to speak about homeland security. we can do multiple things. >> how do you know when the nation is secure? what is this test? >> not only is that a good question, it is a timely question. while the department has extraordinary brand name recognition, and lot of people still ask that question. what does it mean to have a secure homeland? what we think it means is to speak of homeland security is to speak of a safe and secure,

resilience place where the american way of life can thrive. that is the vision. as someone told me in my life, if you do not know whhre your going, you are not going to get there. it is a safe, secure, resilient place where the american way of life can thrive. >> we heard admiral mullen last night give his assessment where he got the greatest threat was. i'm sure you have your own. give us your take on it. >> we think about that all the time. if counter-terrorism is job one, often, when you discover in public policy and governance is that you are throwing remedies at a problem without any real theory of the problem. what are the greateet danger is that we face? certainly, how high it and affiliated groupss-- certainly out-and affiliated groups -- certainly al qaeda and

afffliated groups. when we talk about having a vision for home security, a invented dream.a plan is an so the question is what do you do about this vision? how do you achieve that? we think building a safe, secure, resilience place for our way of life means we need to fundamentally fervent and other terrorist attack here. we need fundamentally to secure our borders. why? because it is a threshold is possibility of sovereign nations to control who goes in and who goes out and what goes in and what goes out, but here, you may get to see the dual nature of homeland security. on one hand, we want to keep out people and goods that might be dangerous, but we also want to welcome legitimate trade and travel and expedite it. the third thing we have to do is enforce our immigration laws, again, because we want to welcome those who would enrich

our culture and society but keep out people who might be dangerous. we have a fundamental right to know who lives and works within our borders. it is essential to its stable economy. the fourth thing we need to do is secure cyberspace. this is a new mission. because cyber capability lies at the heart of so much of american life. -pfinally, we need to build a brazilian country to face all risks. >> you described the threat as being external, sometting we have to keep out. since the first of the year, 25 people who were either native- born americans or naturalized americans have been charged with terrorism crimes. there has been a lot of talk within the department, i believe, about community outreach and trying to address the problem that way. do you know if that works? >> i spent a lot of my career in national security, international

relations, foreign policy. -poutside the countrr virtually looking in an understanding conflicts around world. there are a lot of mythologies about violent conflict. one thing we fundamentally no -- al qaeda is no mythology, and its ability to attract followers and motivate people, not only to discontent, but to violence, is real. we know there are people here attracted to that ideology and who are themselves become motivated to violence. >> what do you do about it? >> we do several things. our strategy for counter- terrorism really means we need to pull together the tools that we have at our disposal. if we are fighting terrorism abroad, we depend a lot on

intelligence, certainly, information. our partners -- we depend on those as well. we depend on the military -pfighting the wars we are fighting. at home, this will -- you cannot just pick them up and put them here in the united states. >> what of the tools we have? >> we have several tools as well. we have ordered tools. people crossing our borders have to go through, but their actual we have law enforcement. 800,000 state and local law enforcement personnel as well. we haa intelligence information, and we have the american public why, which is an extraordinary, tremendous, resilience asset in a combined effort we must all undertake to keep ourselves secure. >> what about the of reach -- all -- the community, to the puslim community to try to build

bridges? >> one of the extraordinary things about being an american is that you get to be many things. you are not forced into a major version of yourself where only one dimension of your identity, but you can multiply affiliate. we allow space for the socially and politically in this country. while we do reach out o muslim communities, we do engage them and we want to understand the3 engage them in the average to protect ourselves. we are actively seeking ways in which american society can come together as we have so many times before. >> you mentioned law enffrcement. in the zogby case, there was a problem. local law enforcement was in the loop, for dissipating in an

investigation, and they went to somebody in the muslim communiiy and spoke to him about the investigation, and he tipped off someone, and that resulted in a premature move in that investigation. there was a misfire -- local and federal authorities were not working perfectly in tandem. >> one of the things we believe in is the power of community policing with police work within the community and together to understand from that level where local knowledge, local trust, local confidence it built from the ground up. more broadly, i think what you are speaking to is how do we understand is that when it is beginning to materiallze? the time that exists when they might be moved to violent action and the time of actually taking that action might be relatively short compared to if they have to travel abroad, so we need to know more. we need to act wisely.

we need to remember our nooms and values that made this country great, and we need to craft strategies, in working together, to keep ourselves secure. >> t the moment, a huge problem for your department. >> is terrorism problem for our department? >> obviously terrorism is a problem, but the home grown is particularly difficult because when you are dealing with an overseas that, there are other tools and can brought to bear. you do not ave those year. sometimes people can operate under the radar. >> that is exactly what i said. we did not pick up an export the tools that are applied abroad here. we have the public, law enforcement, and we have information sharing. we need to work on all of these in crafting strategies that aalowed us to know when disaffected people are going to move to the kinds of violence

that we characterize as terrorism. we absolutely acknowledge it. we accept it, and we are working not only across the federal government, but in what we call the homeland security enterprise because it is far more in just a department. it is individuals, families, states, municipalities, and his entire federal kremlin. >> is it working the way it was supposed to with information sharing? is information flowing up and down the chains from local law- enforcement to federal government, coming right down the way it should? , i'm smiling because of course not. we have so much information at times -- i mean, we all feel like this in our everyday lives. i have all this information, but i do not have the information i need. and information is not enough.

we do need to do better in sharing and in a way that protects civil rights or civil liberties about privacy. but we also need to understand the answer implications of what we know, and this is very fundamental, not only in our counter-terrorism strategy, but it is billing and resilience society. do we have in power individuals? what does that mean? it means individuals who knoo what to do, no one and are confronting -- know what they are confronting an know how the act. capable communities who know their constituent members, know their strengghs and weaknesses and converting and marshal resources to bear, not only for themselves, b with each other on an annuaa eight kind of way. then, a responsive federal system, one understands its value proposition in this whole enterprise. >> how do we get there? >> it is a jjurney of $1 and

miles. it begins with a single step. it begins with an understanding everyone has a responsibility. it was a citizen who identified the times square bomber. >> these are tight budgetary times. local governments, state governments are having trouble balancing their budgets. local police departments are under arrest. do they have the resources they need to commit to this issue? will they continue to have those resources, or are they going to decide but something else is more important and they cannot invest in a couple of people, at the houston center, for instance. in homeland security is howned

different they are. national security s century, strategic allies. homeland security is driven from the bottom. the communities and states have a voice, rightly so. it would be presumptuous of me to say whether or not they have the right resources that they need, but what we know is that we have to do everything we can to strengthen their resources, through the grant programs, through in gaining, through the future and centers -- the future centers, establishing standards, for example, so communities kkow what they need to do in order to be ready. >> do you see the possibility of credit finding increasing in the next three years? a that you were going to ask if a good deed the possibilities. of course, i can.

we are in an extraordinarily stringent financial times. the department has benefited from a generous investment by congress over the past several years, but fiscal constraints affecting everyone are affecting the department as well, so we cannot go in surprise. we perhaps all need to do business differently, but we still need to do business together. >> a lot of money has been spent on technology. machines that were bought and deployed in the nation's air force to not work well in a real world environment. there is a problem with neutralizing detector equipment. why have so much money been spent on technology that has not worked as desired? >> first of all, technology is

only part of the system, part o3 in-depth, as we like to say. technology is a very beguiling thing. people are always in constant search for the single bullet. looking for silver bullets is like looking for dinosaur is in manhattan. there are no dinosaurs, so we should stop looking for the single-point solution in any of these. the technology is improving our ability to detect. improving our ability to interdict and apprehend and prevent dangerous things from happening, but it does not exist alone. >> do you think the department is doing the right risk/benefit analysis, given some of these chances that have been taken have not paid off? >> in the public sector, governments spend money in three ways.

you invest money, you place bets, i suppose like we all do. will this work? in many of the areas in home and security, we are trying things that have never been tried before. we are trying things on a scale that has never been tried before, and we are trying to addrees problems that are problems of first impression, not only for us, but all of us. how do we ensure our security without sacrificing our liberties and privacy? technology is a piece of that. are we learning every day? we are. we are getting a lot right. are there still challenges, of course. analysts talk about the full body scanner, a being deployed at the nation's airports. would one of those standards have caught mutallab if he had walked to one? >> the answer is possibly.

are looking for absolutes? then my answer will be disappointing to you, but if we approach, does it improve our ability to detect cracks the absolutely improve our ability to detect. >> is it worth the amount of money we're spending? >> at marginal question is one we are asking ourselves every day. the answer is always an option is a question of the alternatives available. we believe oriinted technology. we believe it enhances our detection capability and the experience at the airport, but it is not the only link in the chain. >> let's talk about the other links. penetration testing, true transportation security checkpoints, have come up with some prettt appalling results in the past. what is the current test sure you. >> and are going to go into any details about our current ago capability. >> are you improving? >> we say in from all the time.

-- we see improvement all the i would say the technology has evolved. our systems half the ball. >> another one of the layers, air marshals, do you have enough of them? >> the feeling is that we could uss more air marshals. we do a risk-based because you will never have enough for every flight, and so ombining a risk- based approach we thing as an asset as well. >> where can an increase would you like to see? >> again, we are -- this as a single element of an entire process is waiting is the other elements of that process as well. what we want to see is the

system and the traveling public can have convents in -- confidence in to give them a safe traveling experience. one thing we learned about 12/25 -- we llarned that you can access the global aviation system from any part, you have pptentially have access to the entire system. this is an individual that bought his ticket in one place, boarded in another, and transit in a third location, and you could put any city on the map for those four locations. what we have to do and what the secretary asked me to do in the immediate wake of that was to travel around to the aviation partners around the world. we went to 12 countries in 12 days, and we talked to folks about the elements we need to put together to be able to ensure the traveling public they are safe.

if outcry and its affiliates are putting their best our answer the problem, we need to say the it out-and its affiliates are putting their best on the problem -- if al qaeda and its affiliates are putting their best on a problem, we need to do the same period is one thing did deal with individuals you have identified and another to deal with a relatively unknown. this individual was not totallyy unknown, as we all know, but relatively unknown. we must be better information sharing, and that requires partnership and a commitment to standards and information that we can data on travel so we can expedite to his child. tte second thing, like the technology and systems in place. do we have the right kinds of

technology deployed? are people using it? are we satisfied that the systems that are in place in+ these locations meet the standards we think have to be met? third, we know the strongest members of the system have to help the weaker members to raise the level. >> looking at the international -psituation, i know you find soe agreement, but is the world as a whole -- and yet, and work is close in terms of where they need to be. >> we think this has beee a major agenda of the secretary. we have made enormous progress. she has been to every region and around the world and has had secured greements with countries going to a major gathering in sentiment. >> what are the specifics in those agreements? >> the issues that i spoke about -- higher standards for information gathering and sharing. better use of technology, the exchange of standards and technological information, ann

practice because it is not just any single piece of equipment, but rather the whole system we have in place in an airport that makes for a secure system or not. and a commitment to raise those weaker parts of the system to an acceptable standard. >> a similar bomb had been usedd against the saudi army. a u.s. official had gone over and gotten a briefing about that particular type of bomb, but it does not appear that that information was disseminated, for instance, to the tsa, so there was not an adjustment in screening. am i correct? why did not work better? >> what i will tell you is youtsa and every day has a robust playbook -- i will tell you back tsa has a robust

playbook of measures that it deploys so we do not getting potential after terry -- adversary to misinformation. we are constantly updating our knowledge based on what kinds of threats exist, what kinds of explosives, what kinds of strategies or procedures terrorisss have in order to stay in step ahead. >> but would they get the intelligence needed? >> any kind of material. >> concealing it in the and were was something we had only seen in one saudi before. >> without going into some of the specifics of the case you are talking about and the information that we had, we knew about this kind of material and a potential threat that it poses, and we are constantly working to ensure that we prevent that kind of danger from happening.

>> another kind of mission is to protect mass-transit. 1/3 of the terrorist events have been against mass transit. is the department of boating and resources, intentions, and time is should be, or offthe system is quite fundamenttl and unpredictable? >> i would not take all they are unprotected. we have to take an approach that engages all our tools.+ the department has a dynamic dialogue and relationships, not only with all the cities where these mass transit systems concentrate, but obviously, they extend nationwide, but also with the private sector. many of these parts center -- private-sector centers lost, and we need to inform the public to be alert for potential danger

and employed best practices for their individual trouble that abuse is there potential vulnerability, where dialogue with municipalities, with this city's on ways to strengthen the protection of mass transit system. can we do more? of course we can do more. if money is allocated based on risk, the risk of mass transit is to be very high. you have almost explained it yourself with your statement. it is true. is there enough money to go round for every thing that it needs to go to, the answer is no. does that mean we are without anyymeans to protect ourselves, our system, the travelling public? again, this is something we look at not only from the perspective of counter- terrorism, but in terms of building a national resilience to withstand all this types and understand how we, in federal department, together with other federal agencies can add value to what the private sector is

doing, it will -- to what citizens are doing on their own behalf. >> we are doing a quick tour of the waterfront. i cannot let use of the way and not asking this month. the poorman homeland security inspector general recently did a report which said he did not have the manpower or the capabilities, and you adjust at this point not to the job. there were a lot of bad things. what are we facing? >> in the first instance, it was the department called out ensuring our cyber security. i think core mission of what it means to talk about a safe and security -- state and secure place where theeamerican way of life can survive. i cannot tell you how many people have come up to me or others in an apartment who work at the state and local level who said that they never had give it

the kind of attention that they would. consciousness raising is an essential element. what we need to do is construct a cyber ecosystem. cyber security is fundamentally about two things -- protecting your information and identity. it means if you can engage in such average kennedy, her confidence means your information is simply getting where aades to go, and the how do we do that in a way? the federal government is not all in all these other resources in the country, so we certainly cannot do it alone. not only do we need to engage the american citizens, who rightfully feel as though the owner information, their identity, we also need to increase the private sector as well. this is a committed partnership that the department is very strongly supporting. >> according to the report, half

of the positions in a starter division are unfilled. why is that? >> because there's a great competition for cyber capabilities. we aim to become, as the department of homeland security, is charged with the presidential directive with ensuring the security and the space and working in industry to his seat for a security -- to ensure security for the space. i will take some time, but we are committed to that. >> how do you get there? when you do have that kind of industry competition. >> we tracked ii the way all of us are attracted to public service. we are attracted to work on something that is bigger than ourselves and a mutual commitment to this country. can we pay them the money that private industry can pay them? of course we cannot, but we can reward them with good work,

opportunities to explore and develop and create a safe and secure cyber environment. >> but they read this report and say that dhs may not have the juice to deal with the problem. >> we based our lives choice of a single report we read or seen the report we year, but the point is for the government to become engaged in a sensible as a way -- sensible way, we could really fulfill our valued addition, and i feel certain that cited secure wilma mean that the government has taken charge of securing everyone's ipad or whatever mobile device they have, but we have to have a sophisticated system in which people understand their security

needs. the department will be at the center of that activity, together with private sector partners, and the attraction of back will bring in the best and brightest. >> his secretary said recently that she saw the dam it -- she thought the government might need more tools to monitor the internet. what is she talking about? what tools? >> we know that the internet has had an extraordinary effect. there may not be any such thing as a minority anymore because you can find your affiliation on the internet, and you can bypass the barriers to being a party of one or feeling alone or isolated, and we need to understand what are the means by which people whoofeel disaffected are motivated to

line up -- to violence, and is that connection to violence that we're determined to get at. we know the internet service in some cases as an excellent for that. we saw this with eight radial in rwanda in the 1990's. we did not plan the internet or the radio, but what you understand is it is an excellent to violence -- we do not blame the internet or the radio. >> what tools is she talking about? >> we need to understand -- tools are not just technology tools. tools are also understanding and processes and work processes and procedures, again, guided by our norms and values and sensibilities. what tools do we give our

children when we are raising in to be responsible citizens? we give them tools up here. we give them macro's, i suppose, to deal with everyday life. we need more tools to understand how the internet functions as an accelerant in life. >> the color code came to be quite the joke, and there was a group formed that was supposed to take a look specifically and make recommendations, and they came back and they said to simplify it. make it easier. it could still have an important has anything happened to those recommendations? , first of all, i shoull say that we have been implementing measures both as an apartment, as part offthe federal family, and together with state and local in responding to increased

circumstances of concerned, increased postures to that, and the color coding system has not been the mechanism that has conditioned how we respond. we are putting in place and have put in place and activated a number of miners to respond to that dynamic sec -- a number of measures to respond to that dynamic threat. the president is looking closely at those recommendations, mindful of, again, how we put in place a system that is a value added to our ability to insure our protection against terrorism. >> what are we going to see the change? >> well, we should when they are done. no one has been standing still for the past 18 months. there has been a generation of learning and conversation at homeland security over the past

year and a half, building on all the work that has been done previously. we know what it means when we we know the five mission areas we need, and we know the american public has the right to expect that we can do three things. phey have a right to expect we can execute his missions. and they have a right to expect that we can account for the resources that have been entrusted to us. this is an operating department. there are 200 and thousand men and women, and 207,000 are in the operating component. every day, people wake up, the good of the airport. they are on secret service details or off the coast guarr in doing search and rescue or oil spill response, every single day operating on behalf of the security of the american public. they are our most precious resource, and every day, we're doing things to create systems

and processes to support their work. >> surveys we shall month-to- month on having people in the >> there are the most committed and passionate about the3 there are a number of people who have said to me, "this is something i feel very strongly about." there are a number of them decide they're going into the army. tomorrow, i will have been our unami as long as i have been in my life. i thooght about that. i went to training in 1976, and it was not a great time to be in the army. it was extraordinary and his the post-vietnam dealing -- i have had people in our department tell me that is how they feel. we have to change that. these men and women are every bit as committed aa our men and women in uniform.

i'm married to a soldier. i was a soldier. they enjoy very contribution they are making, it is my approach to be their leader, but my greater privileee to be one of their numbers. what we have to do is give them as tradition, a tools, and leadership and working environment that they deserve to massive fashion. >> where a lot of americans interface with their departmentt is at the airport, and people say that they feel like they areperped when they walk into a screening line. >> most of the agents are committed professionals who have one job alone -- to ensure your safe air travel, and they do with professionalism and commitment.3 personnel issue, suitability.

people who have secret clearances ttat led to come to your department are put through an additional screening for suitability. why do they have to go through that? does this secret clearance not do that before you? and does not slow the filling of physicians and perhaps to some people away? >> first of all, we are streamlining the process. it is a requirement of federal service elsewhere. people have the department of defense, taking your security clearance as evidence of your suitability, and we are moving in that direction, but we also have a number of law enforcement, the largest federal law enforcement agency in the government. having security clearance does not entitle you to work in a law enforcement job, but we're working to streamline the process because it certainly

does slow down. anyone who has been in federal any help in slowing it down.d >> quick question on borders since that is one of the priorities you brought up. a lot of concern about the southern border in particular. do you have any indication that the south is being supported by terrorists? or in front, a lawyer in order? >> secretary napolitano has said many times, the southern border has never been more secure than it is today. >> and the northern border certainly is. >> our borders are as secure as they have ever been, and we have to create a system that does keep dangerous people and goods out, but also, a system that expedites legitimate trade and

travel, so we have to find ways -- and we are finding ways, again, working also with industry -- to exercise that so we can focus on those that might be dangerous. >> you have surged in a lot more to look to the border, but in this human chain across the border. >> that ii right, and even then, someone goes off shift. >> how are you detaining all ages security? it is a question of working from the federal government has a point of view. this is our responsibility. we know that. working with personnel, technology, a procedures to strengthen those areas of the border we know need strengthening peri work with state and local officials to develop good situational awareness and the ability to predict when we no trouble is coming, but equally, and ability po expedite legitimate trade and

travel to be able to get it on its way. >> i want to open it up to you guys. we have a couple of microphones. please identify yourself and your organization. i see two hands of. let's start with one further back. >> i am just a citizen. there was a report i saw on the internet two weeks ceo from and local arizona tv station -- two weeks ago. it reported there were hundreds of people from nations that sponsor terrorism, including afghanistan, egypt, iran, iraq, pakistan, sudan, and and and, who have been detained. just as an ongoing following question, is that, do you think,

a likely number? but there are hundreds of potential people from terrorist nations who are crossing on a regular basis across the border? >> i have not seen the report, so i cannot comment, but we are working every day to ensure the safety and security. the secretary said one who knows the area well, one who knows arizona bell, one who knows the border extremely well, as we did this border has never been more secure, and we're working too strengthen the measures we have in place. a combination of personnel, technology, processes, procedures, we will continue to work on those areas there was -- there was someone else over here in a blue shirt.

>> "washington times." in the current fiscal climate, is it time to get rid of he [inaudible] >> in our view, it is very clear -- everyone faces some risk, and we know that as we have transmitted into a new fiscal environment, a number of things need to be examined. we need to streamline our grants program, and that is something we are doing. >> what about the problem of distribution and politics? >> homeland security -- again, it is an extraordinary department. there are 108 congressional

committees and subcommittees that oversee the work of the department. there are 56 untold communities that are important constituencies for the department of homeland security, said these decisions are taken of all the needs we need to serve. >> , to ask you about that on a congressional basis. there are a multitude of committees over some parts of the department. i look over the schedule and see what individual talking several times. how distractiig is that for the department? how much time does that consume? what difference would it make if congress streamlined oversight for your department? >> we think it would be an important strengthening component. we are very grateful. congress has been very generous to the department of homeland security. we acknowledged that, and we are

very grateful for it, and we also know that we have to answer for it. >> how many are in europe -- how many committees? >> 108. >> it is ridiculous, isn't it? [laughter] >> it is a lot. >> i have to say, deputy secretary, i was a bit baffled by your remark about the secretary claiming the southern border has never been as secure as it is today. what are you basing that in? what is your metric? given what happened recently, is the state legislature and arizona, its governor under some massive dilution? whaa is your basis for that claim? and i think the secretary has been very clear -- >> i think

the secretary has been very clear. the number of resources committed to the border, the level of process is we are applying at the border, the training or qualifications for border agents combined with other elements -- there's more fencing men there has ever been before. there is a greater use of technology and process.+ >> but there is still people coming across. >> [inaudible] that is the case of all. >> i would not presume to answer for the state legislature of arizona. >> do you know what it would pass that law if the board is as secure as you are claiming? >> i am prepared to speak about the poorman homeland securityy -- the department of homeland security. >> there is still a distance to go. you cited that as one of the fundamental things this department has done. >>