it is not an expedient artifact of the imagination. it is written on the blood soaked ground of iraq in -- and afghanistan. it is in a thousand other places of our history in lessons repeated over and over again. the presidency, a great and complex subject upon which i have only touched, has become symbolic in overreaching. there are many truths that we have been frightened to tell. if we run from them, they will catch us with our backs turned and pull us down. better that we should not flee, but rather fall -- but rather stop, and look them in the eye. did not our forbearers say to us, knowing what they knew -- i

have no doubt that they would tell us to channel our passions and speak the truth is simply, and to what is right. -- and do what is right. slowly, and with resolution. to work steadily, without animus and fear. be like a rock in the tide. to let the water tumble about us, be firm and unashamed in our love of country. . . federalist, back in 1776. danger all around, but a fresh chapter ready to begin, and corrupted, with great -- uncorrupted, and with great possibilities and inexplicably,

perhaps miraculously. the way is clearing ahead. i have never doubted the providence can appear in history like the sun emerging from behind the clouds. if only as a reward for a year and to first principles. as churchill -- as a reward for adherence to first principles. before congress in 1941,as churchill said, "he must indeed have a blind sold the cannot see it that some great purpose and design is being worked out here below of which we have the honor to be faithful servants." a long time ago during the tortured history of rome in the fourth century a.d., the emperor constantine was faced with an ultimatum backed by what appeared to be military force impossible to resist. a failure and defeat seemed certain to everyone, but in the morning, when his answer was due, he said to his assembled

troops, "last night, after i retired to rest, the shade of the great konstantin rose before my eyes, and his well- known voice and forbade me to despair of the republic." we too have a voice is of shades -- have voices of shades who emerged from our past. we too have what lincoln in his first inaugural address called, "mystic chords of memory stretching from everywhere." -- every patriot grave." they bind us to the great and to the humble, the known and the unknown. and if i hear them clearly, what they say is that although we may have strayed, we have not strayed too far to return, for

we are, everyone of us, their descendants. the sinews are still there, quite lively, waiting to flex. we can still astound the world with justice, reason and strength. i know this is true. but even if it were not, we could not, indecency, stand down, if only for our debt to history. the debt we owe to those who came before, who did great things, who suffered more than we suffer, who gave more than we give, who pledged their lives, their fortunes, and their sacred honor for us, who they did not know.

for we drink from wells that we did not dig and are warmed by fires we did not build, and so we must be faithful in our minds, as they were faithful in theirs. many great generations are gone. . see them in my mind's eye they forbid us to despair of our republic. i see them crossing the prairies in the sun and the wind. i see their faces looking out from steel mills and coal mines. emigrant ships crawl into the harbors at dawn. i see them at war, at work, in

peace. i see them long departed, looking into the camera with hopeful and sad eyes. i see them embracing their children, who became us. they are our family and our blood. we cannot desert them. in spirit, they come down to was in connection out of love. we cannot be tried. they are silent now. from the eternal silence from every patriot grave, there is yet tenneco that says -- yet an echo that says it is not too late. he faith in us. keep faith in god. do not, do not ever despair of this republic.

[applause] thank you. god bless you. thank you for the opportunity to address you today. thank you. >> also speaking at the convention was douglas just judge jenkins. he was elevated to chief judge of the second circuit appeals court in 2006 by president george w. bush. he discusses how the constitution affects national security issues in the courts. [applause] >> thank you for the opportunity to deliver this lecture, named

for barbara olsen. she spoke to us about compelling matters with a directness, kantor, and wit. it weighs on me to do justice to this occasion. i will talk about lawyers that war, more particularly, the professional elite and the bar associations that are at war with the military of our own country. i am not the first to notice there's a prevailing hostility to all institutions organized on lita lines, and a suspicion of the people in these institutions and professions, the fbi, of course, even the boy scouts. this is nothing new. i am not part in the curtain. it is part of a wider current of fashion.

to bar with race, whenever many americans consider the military, the worst thing they can bring themselves to imagine is the only truth they know. elsewhere, in other fields and professions, it may be just a matter of fashion, of snobbery, and gratitude, but we need to take this phenomenon seriously because of our power, our influence over the constitution, our weight in policy, and the roles that we have been given and have taken in american life. with us, there are consequences in features beyond the cultural divide. it becomes a great and consequential problem. what we hold and trust should cause us to examine ourselves by their standards, even if we are not flattered by what we find. so far as i can see, the distinction between the military and the bench and bar is not remarked on in our ofession.

i started with the premise that this is pervasive in the lead to legal communities andmyriad institutions, bar associations, law firms, and their pro bono project, the law schools in all their works, the courts, the judges, jurisprudence itself, what can be called big block -- big law. i will talk about how this came about. this is unbecoming to the legal profession and distorts our law. it is downright dangerous. ironically -- [applause] because inically, it weakens rather than titans the control of the military. the isolation of the military can be explained by the existence for -- of the old volunteer force, among baby

boomers in the upper reaches of the legal profession, military service has been rare. those in the military in enlisted ranks are assumed to be mentally limited or luckless refugees from backward areas of the country. to be sure, they are not like us. there is a well-grounded impression that the demographics and characteristics of people in the military differ from the makeup of people who form e illegally leaked. secretary of defense robert gates observed at duke university that the propensity to service most pronounced in th south, in the mountai west, and in rural areas and small towns nationwide. the percentage of the north and the northeast, theest coast, and major cities continues to decline. so, the military is composed of southern and mountain types.

we are unit coastal or by coastal. manyf them are rural. we are urbanites. albeit with country houses. the military maintain secrecy, while we professn interest in openness and disclosure. there is the money. the military does not have our share of women, sociologists, gays, volvo drivers, english majors like me, persons with handicaps, the elderly, me again, and so on. to be clear, i am an example of the urban league's elite, the little island i live on as maattan. i drive a european car and i did

not serve in the military. i am not here engaged in special pleading. given the differences between our spheres, our encounters would be limited, in any event. in the elite institutions of the bar and legal education, people in the military are actually sequestered or excluded altogether. there seems to be no effort in the law to correct this exclusion. in the law school, separation is policed. law schools welcome to their faculties of law officers -- philosophers, ethicists, political scientists, even crinals. there are few with military experience on the self-selectg law faculties. this absence is most remarkable among the considerable faculty teaching in the law of war, human rights law, and treaty law. i asked a member of a distinguished law faculty, many

of these colleagues had served in the military. after some thought, he said, one, adding after moment that the service was in the israeli army. the banishment of r.o.t.c. from campuses have counterpart in the longstanding ban on military recruiting in the law schools. today, there is a competing moral imperative, the need for federal funding prevent the actual exclusion of military recruiters, but i am told some law schools circulate a cautionary memo telling students to stay away from recruiters. other schools take other measures with the result that military recruiters have no visitors to their desks. although official statements may say otherwise, it would seem that in most elite law schools,

military service is not credited as public service for purposes of scholarship funding or preferential admission. i would bet that it is easier for lawchool applicants to claim the credential of public service by having done voter registration in the cemetery than by a stint in the navy. thus, recruitment is prevented in law schools. i know it is an article of faith that there is a principal ground for hostility and discrimination. many people feel strongly about the policy called "don't ask, don't tell." the alienation i'm talking about predate the clinton-era policy. aversion to the military became a dominant current of liberal and academic during the economic region during the vietnam war. since then, it has not abated or mucheveloped. young people have been indoctrinated to recoil from all

things military and have been taught to attribute that instinct to the policy on gays. there is unfinishedusiness in this country when it comes to gay rights. opposition to a de "don't ask, don't tell" policy is unresolved, but it has a contextual element. if it is no longer not asked, there will be other reasons. women excluded from combat, homophonic -- homophobic hostility in the ranks, institutional bias, and so on. prejudice never runs short on its fuel of rationalization. it must bsaid that the citizens of the republic should be wary and skeptical of the military, as they should watch with caution over all government institutions. evenawyers should be wahed. but, distrust of government power by the legal leets is

largely suspended when it comes to many centers of government power that are staffed by lawyers. epa ,eeoc, osha, not to mention the course. as to these institutions, the bar and the judiciary seemed to be deferential, trusting, and nurturing. when it comes to the military professions, even military boy hearing, the distrust manifested by american legal institutions becomes a fixation, a calling, and is considered a badge of honor. some of the hostility against the military by the legal elite has to do with the culture of the lawyers themselves. their functional. their financial. they're politically interested. they are pretentious. between lawyers and the military profession, there is a competition for prestige, resources, influence, and

authority. it is an uneven competition among our natural bandages. there ar all the legislators and all the courts. there are few andxternal constraints on our exercise of power. internal restraints are deficient as well. as a profession, we are not self-examining. are critical and investigative skills are always directed otherwise. law and competition does not get along well with others. we intend to press our advantages without apology. we celebrate our dominance as judici independence and the rule of law. this competition has become intensified by war. lawyers and judges are of the view that someone -- something is of great importance, it can be safely left to us. we lack humility and approaching -- in approaching great matters. we tend to assume that

adversarial hearings will render judges on a competent -- omnicompetent. our mindset is that if sething is of greatest consequence, such as speech, thought, expression, race, identity, and sexuality, property, life-and-death, it cannot safely be left to any ultimate influence or insight but hours -- our conflict is one of those great matters. civilian judges have reseed the last word on all consequential matters. we think it is normal for it to exercise power over the taking and detention of prisoners, interrogation, conscientious objection, surveillance, military tribunals, and so on. there is a structural problem.

the legal profession is not vested with responsibility for defense of the nation. it is a positive virtue of our system that judges are not held accountable for our decisions. in matters of defense and intelligence, it is critical that there be scrupulous accountability, the kind that can be located only in the political branch. if critical measures are impeded by lawyers in terms of constitutional questions and a judge rules on them, there are constitutional requirements. accountability fails. . >> no doubt, lot is needed to avoid arbitrary military abuses. the branch of our profession that performs at work every day is the judge advocate general

corps that are among the best of us and work full-time for the public could without statutory fees or comes to ensuring -- or words. is this studied when it needs public attention? when a lawyer is zealously representing a client in a court martial or military tribunal? it is assumed that the lawyer is a singular economic -- anomaly. . at last, someone with -- that is as good as we are. this is a cartoon.

i know little of military adjust -- military justice. you lost to the state courses in that. yet, no less a trial lawyer that f. lee bailey observed, the fact is, if i were innocent, i would prefer to stand trial before a military tribunal governed by the uniform code of military justice than by any court, state or general. it is that enough that service in the military is not honored. ary is not honored as service -- the best graduates of our law schools are impeded from contributing to the military and the insights of distinguished lawyers and judges. in other times, the military has been a place where people out in

different advantages in life came together and to know each other and trust each other. it must have made a difference when citizens of privilege, education, and prospects interacted every day for years. for the privilege went on to read -- to wield influence. i discussed these subjects with my colleague, the judge danny parker, who was a trial judge. to his observation, it had an impact on sentencing. judges have known shared experience and even camaraderie. people who appeared befe them for sentencing. judges couldappreciate the strength and the instincts of those who had been without a head start or a good hand in life.

the judges had known people for their honesty and courage and had encountered them in ranks other than the criminal classes. the harsh sentencing regimes that prevails zero sum of the distinction between military and the rest of us. i said that a war had intensified to fell competition between the legal the lead and the military. i think that that is why the legal elite is reluctant to acknowledge the it advantages that are given to the military and intelligence and military calculation and response. they gain resources, influence, deciding policy and strategy. they have the indispensable insights and critical experience. they become heroes, however unwillingly. because this elevates influence

in government, policy, and constitutional imperatives, this thereby discounts and subordinates our own. this displaces the legal elite from its sole place of prestige in american life. both lawyers and soldiers have indispensable roles and defense of our constitutional government. the constitution means a certain amount of flexibility and reciprocal accommodation. some competition is inevitable, the antipath of the lawyer a leak makes the competition destructive. constitutional values, and due process, civil liberties and civilian control are pressed into service as instruments for preserving our dominance. it is not surprising that this manifest obviously in the ongoing debate over how to

classify the threat from terrorism. this is a matter of national defense or a matter of law enforcement. the arguments lime cosines. to my observation, this promotes this alien role of the lawyer test. many lawyers deny that we are at war. peace is a time when soldiers are a contingent asset and lawyers are sent so the lawyer e. lead has an interest in the ninth ward. -- the lawyer e. leelite. competition and antipathy also met assessed themselves as perot bono activity and defense lawyers ideas on what of the

public good is. the fiasc following the 2000 election, i watched on television and if there were many lawyers who argued that absentee ballots mailed in by those should be discarded lat on. maybe the balance relates to proper disqualified him. ahoy i would not have except an advocacy role. mahethe lawyers would have scord was discussed the work of any other groups in this country. i suspect that every last one of them would happily served pro bono, the right for felonso vote in jail. there was something alien of them serving in the military and it worked their idea of the public good. by the same token, many inmates of the facility at one time obey

find themselves over represented. the assistant attorney general tells us that 34 of the 50 largest law firms in the country have advocated on behalf of guantanamo detainees. and some family courts, soldiers and sailors are found to be unfit parents because they are being deployed abroad. the defense of guaanamo detainees has been cast as a courageous act of vindicating the finest addition of our profession, to protect the accused and despised. i hesitate to judge a lawyer that many have had to take. the civil-rights movement created her role models for the

movement. it is hardly an act of courage for lawyers to do the most fashionable thing they can do, to do soo the applause of the associations, the law schools, and the media, and to enjoy the advocating on the big controversial issues, not to mention the thrill of rep clients who would kill the lawyers if they could. that is if military officials were not standing by. [applause] my experience is that people do not fall all over each other to commit acts of courage. permit me to doubt the outpouring of resources. one of those selfless acts was from a wall street law firm. something else drives this phenomenon. the main struggle and the

competition between the military and the legal community has to do with civil liberties. lawyers have an interest in exaggerated threats to civil liberties said to be posed by measures designed to protect the nation. consider the civil liberties litigation that arose when the nation's libraries were allowed to show what was checked out by people at the various liaries. it was just an inquiry but allowed them to identify ted kosinski as the unabomber. his manifesto had been cribbed from books he had taken out. that at the side -- episode excited no anxiety. why should this? i remember that every had a card in the back cover at recorded their every person who are of that book. the idea that this controversy involves a threat to libey was overwrought.

but, this is of a peace emotionally with other litigation challenging the country under attack, litigation resolving habeas corpus, guantanamo, etc. this allows lawyers to cast themselves in a heroic and dominant role as the real defenders of the constitution in league of course with the journalist to chronicle their achievements on behalf of the constitutional order. why do lawyers worry? what we lose if the military joins us in preserving the constitutional government? illegals damage and and the military are not exactly engaged in the same project. r lawyers, t constitution is means to other ends.

law professors and meno the intricate workings and the mainstreams of the constitution and many of them use their skills is to meddling, the way a good safecracker regards a safe. anything that diminishes the primacy of lawyers vis-à-vis the constitution is something that undermines a claim of entitlement abided the elite bar and the professoriate and the judges to control the constitution. whatever the legal merits might be, the litigation i'm talking about. the theater of litigation allows a lawyer cast to set itself up as the true defender of the nation and its people. the more numerous the civil liberties issues, the easier it becomes for litigators, law school clinics, bar committees, and associates to present

themselves as the authentic defends of the constitution in actual opposition to the military and in opposition to law-enforcement and intelligence professions that value military service and internalize military values. competition has sharpened. lawyers cannot just doing the other side. we have different skills sets, tactical imagination, culture, values, attitudes towards physical risk, we cannot shine or prevail in the other sphere. what is at stake is -- lawyers and the military are in competition for honor. the word has lost currency but the concept has lost none of its potency. t greatest danger for our country is structure. in order to maintain civilian

control, we need civilians to understand the military. what they do and who they are. they have a rivalry. how weapons work, which are needed. what they should cost, how to allocate resources. strategy, tactics, intelligence, logistics'. who to put in charge and listen to. when to check the military. when to mobilize. all of these are things that i don't now. it is not due to watch some powers in the hands of civilian leaders who, like me, are ignorant of military life and culture. it is worse to put in charge civilian leaders who are suspicious opponents of the military, just as such powers should never be in the hands of jingoists or military groupies. it is not necessary or possible

that all of our leaders should serve but i think that the ills needed for effective civilian control are required only by the manageme of responsibilities, the weighing in of insurmountable values and consequential action taken decisively in ambiguous conditions. this is not by a degree in public policy or by general publication, by a fellowship abroad, or an international tribunal. it cannot be easy to heal the breach betwee lawyers and the military. whenever culres merged on common ground, there is adjustment going on and we calibration. there is no way to do this without discomfort. first, it must be embraced as a

worthy project. the law schools need to be unsealed. pro bono activity should be credited as much by service to the military as by suing it. [applause] the judge advocate general course should be recognized as integral for the common project of justice. those in the mility service should be recognized by us as appears in the defense of our constitutional republic. the military calling should be understood to be a profession among professions, ancient, honorable, ethical, expert, and indispensable. thank you for listening. [applause]

next, a conversation with former representative jim russell and then the state department briefing and then a federalist society panel on the dodd-franc act. >> live, this weekend, join our authors as booktv heads to the miami book fair international. follow the authors and panel discussions and join in with your calls, e-mails and tweets. >> this saturday, two men as american history tv offers a daylong symposium on the civil war from the national archives

with prominent historians giving any new perspective on the impact of the war. the coverage starts saturday at 9:00 a.m. eastern on american history tv, telling the american story every weekend only on c-span3. >> now, a discussion with former representative jim muscle. this is about 45 minutes. members -- from a discussion of ethics conflict to jim nussle. thanks for being here this morning. guest: great to be with you. host: let's start with the leadership team and the approach you take in assembling this congress. guest: the first thing i have

noticed is that they know what we -- they know what they're doing. if we did not. in 1984 in the same context, we have not been in control of congress in 40 years. no one knew what a transition was like. no one knew what it was like to be speaker of the house or of a committee. john vader was a committee chairman himself -- john boehner was a committee chairman himself. i think there is a difference in the new majority that is coming in for the next congress than there was when we were there. we were never truly in charge of the place in 40 years. host: which is your job? guest: my jaw, if i have a job, is to be a counselor, i guess. i came in and gave advice to people who probably did not need much advice from me about some

of the things that i saw as pitfalls that they may want to look for. challenges we face that maybe they may face in a much different way, and then some basic advice that they might want to think about, given the opportunity of a transition. there are things that you might want to do now that you probably cannot do next year or the year roster -- the year after. i was encouraging them to make some of the tough choices on committee jurisdiction, earmarks, budget process reform. things like that, which, after you get everybody in their chairs and in their seat siong and everything else is a little more challenging to do. -- in their seats and everything else is a little more allenging to do. host: one of the earlier reforms had been a tenure process, you could only serve for a certain number of years and then handed

the gavel over. what is your own thinking based on your experience about the need to stay with the tenure program that has been in place? guest: i like the program that is in place. it is really a meritocracy. it is not a seniority based system. when we took control in 1985, if you lost it long enough and you were still alive when the last german navy got beat, which was rare, you became chairman -- when the last chairman got beat, which was rare, he became chairman. instead of the next chairman getting in, we would have a race for it. it would have to show their competency on the issues of the jurisdiction that the committee would have to preside over.

it gave all of us not only the ability -- i jumped three people, as an example, to become chairman of the budget committee, which was almost unheard of. we have seen a number of recent experiences where you have had committee chair races and where it is a wide open situation. even someone like john some kids, believe is no. 4 in seniority in this situation is not only a viable candidate, but i have heard will be a potential front-runner for energy and commerce. it is an exciting process that i think is still a merit-based system, not just one that if you last long enough you get to be chairman. host: about the jurisdiction and size of the committee? guest: this is the perfect time if you're going to make changes, to make those changes. if you are going to, for instance, has been dark hastings

wants to do, to take energy away from energy and commerce and put it under natural resources, if you're going to do it, i think the commerce -- the congress is going to have to do it right now. otherwise, it during its next year will be more difficult to, -- accomplish. host: how do think the majority is aware of the electorate? guest: i think they're very aware. even the potential minority of january, everyone seems wide awake about what happened in this election. it may take different lessons from it, but this is as sensitive that congress has ever been about what their constituents are angry about and

upset about and sending a message to washington. host: will they say it in the form of a mandate? guest: i do not think so. i'm not sure the american people have decided what they've won yet. that would be the mandate side. i think there is -- by not sure the american people have decided what they want to get. that would be the mandate side. i think they are sure of what they do not want. the overspending and obama care and things like that. i think that has been clear. but what they do want, that has not been as clear. there will be some great debates coming up, sure. host: congressman jim nussle, what are youoing now? guest: i am president and ceo of

a group called growth energy. it makes alternative energy from ethanol. the other is i have a small consulting firm. host: our numbers are on the screen. you can call us or send us a message on twitter or e-mail. moving from structure to policy, the big decisions will be on the budget. we will be doing a series of -- we have been doing a series of the past week of a retired members. the first was from the 94th class. this incoming speaker was here during the time. and what lessons are you hearing of that experience that he is committing to the incoming class? guest: first, i do not believe

-- that was a failure and hopefully we will never go down the road again. we face it because of the failure this year of not having a tax bill, not having a spending bill passed, not having a budget for the first time since 1974 when the budget act was first passed. it is a failure. it is not so much a tactic. there are some people who think that clinton, forced a shutdown as a tactic or been -- or gingrich force a shutdown as a tactic. it really was not a tactic. i believe it was a failure. jim handling has a bill that many are supporting -- jim hands early in has a bill that many are supporting. i believe it would be a valuable reform to the budget process.

host: packaging of the bill is no sure thing. guest:f course not. and many do not like it because it takes away their leverage. we have many in the leadership that have a sort of damocles hanging over the process. it is a sort of leverage. even the white house may feel that way to an extent. i know president bush. possibly, president obama has supported this as part of reforms. i do think it is an important reform. host: what you think from the headline from yesterday's "new york times"? guest: the electoral upheaval has not yet taken full effect. meaning, the congress does not take office until january 5. in order to see change we will

actually have to see the new congress. host: would you think of writing off the congress? guest: they both have to come back to this continuing fight over the budget and taxes a feeling in golden by whatever they heard from the electorate byfeeling emboldened wherever they heard from the electorate. there is shared power. you will see that changing dynamic actually occur. host: let's get a phone call from bill in cambridge, ohio. good morning. . . pommell

caller: he is a lobbyist now and he gets his pension and gets his healthcare and i want to know from it this individual how many years he spent in congress? and specifically how much he has paid into a pension plan and how much he gets right now every year as a pension the rest of his life and healthcare he receiv receives. answer those two questions so the people out here in the midwest, who work for a living can understand how much you make off of our government. guest: happy to. first of all, i'm not a lobbyist. number two, i receive no pension. i'm 50 years old and not old enough thankfully to receive a pension although i have gotten a lot of ribbing about turning 50. that is not quite old enough to even possibly receive a pension. so i receive no pension, lifetime pension. there is no such thing as that. there was at one time, i think

you are right, in years past. i served 16 years and it did not happen to me. i receive no healthcare benefits from the congress, nor did i after i left congress. so i realize there is this culture that believes that is what happens to former representatives. it is not true. none of us receives that kind of pension or health benefits other than the cobra benefit that everyone is entitled to when they leave a job. that is the answer to those questions. host: do you accrue pension benefit that you will be able to tap later on? guest: yes, you pay into a system that is a defined contribution plan, so not even a defined benefit plan. you pay into it similar to many other jobs. that is matched by the tax pap s taxpayers, no question. but it is not something -- will is this pop belief that as soon as you leave congress you start

getting it. if you are 65 i suppose you can. or beyond. but i don't, certainly, and haven't as a result of my retirement from congress. host: one benefit for former members that others don't have is you can go to the floor of the house of representatives, correct? guest: as long as you are not a lobbyist. i have only been there twice. i went there in the president's cabinet for state of the union as an example. it is not a very friendly place these days so there is not much reason to go. host: we are talking with jim nussle, he is offering advice to the incoming members of the g . g.o.p. freshman class an leadership about the transition and moving to their majority. next is from mississippi, anita, a democrat. caller: no, i'm not a democrat. i'm just calling because it is the line i could get through. host: i'm sorry. you can't do that because you will make everybody who follows

the rules so frustrated. i appreciate your being honest but you have to wait your turn. next is a phone call from waco, texas, pete, republican. caller: good morning, jim this s is old pete from texas and you know how we are from down here. 1969 i started my own business. i have a ph.d. in chemistry. by 2005 i had nearly 800 workers and employees. this administration is killing us. their policies are job killers. every where from healthcare to promise of increase in the taxes. i don't have to watch fox news to live this nightmare. what i'm going to ask about specifically, there are many problems. we had to deal with carol browner when she was the e.p.a. director. now he is an energy czar. e.p.a. is in the state of texas is trying to kill every business we have here because of our high petrochemical and gas and oil

business. my specific question to you is, can the congress go in and isolate e.p.a. and say, look, we are going to cut your budget by 80% this first year and you mess around with another state or company and we are going to cut you another 50% next year? guest: well, pete, first of all thank you for taking the risk of starting a business and hiring people and really not only living the american dream but providing it for so many others. second, yes, technically can congress do that? yes, they can. will they? it is hard to say. it is one issue we were talking earlier about this jurisdiction and exactly how the new energy committee chairman is going to handle their job. one will be oversight of e.p.a. as you said and some of those rules and regulations. the last observation i would make is there are many

politicians and others who talk about how we are sending jobs overseas. i would observe that in most instances we are chasing jobs overseas and this may be one of those examples where, because of the rules, regulations, tax system, the mandates, everything else, we often find ourselves in a situation where jobs are not being sent but, rather, being chased some place elsewhere they can do business in a more free open market kind of experience. host: this viewer asked by twitter how realistic is ensuring the bush era tax cuts while resolving the budget? guest: i think it is realistic for this reason. if you believe that raising taxes brings more revenue in to the government you will find historically that it is not as efficient as actually reforming the tax system, making it more efficient and simpler, more transparent and actually reducing overall rates. often increases economic growth

and brings more revenue into the treasury. probably the best bipartisan example everyone could agree on is go back to 1997, 1998, when clinton and the democrats a republicans under gingrich cut capital gains and we balanced the budget when we were actually reducing taxes and spending was pretty much held at about even. so, i'm not saying that is exactly what should happen now, but my view is this is not the time in our economy or history that we need to raise taxes. i think we need to rein in the size of government and spending to get this under control. host: how many new republican freshmen have you met? guest: just a couple of they are kind of cloistered for good reason. going through the orientation and learning some of the basics. this is a very interesting time to be a new member, a freshman member.

you are going through so many transitions. you are going through a personal transition moving from iowa or wherever. you are trying to find your way around this amazing city. and i know we always bash washington but it is an amazing place. then you pick staff, trying to decide what your committee assignments are going to be. and as you reported earlier today, they have a room draw where they begin the of deciding where they are going to work for the next couple of years, which is often about the size of a broom closet in some of the buildings. it is an interesting time to be a new member of congress and one i remember with a lot of fondness. host: we have a clip from john shadduck what it was like coming in and how he thought it worked.

>> when republicans took the majority no one had any reason to doubt that they would do what they said. they had not been in power 40 years. i don't know that republicans won the majority based on the contract with america or anything else of that nature. in part that was their victory but in part it was a reaction to bill clinton. this time republicans have won the majority i think largely in reaction to an overreach by you might say nancy pelosi more than president obama because it was pelosi who said no we are going to push through this healthcare bill consequences be damned. the president and raleigh imam were -- raleigh emanuel were talking about a compromise but the tea party people are expecting republicans to produce, and if they don't, if they break their word a second time i think the tea party could split off and i think that the

republicans could be back out on their ear quickly and that would result in a different fate for the tea party going forward. host: what do you think? guest: first of all, john is right. he has great experience. i was here before 1994 so i saw kind of the before and after. i would suggest this time is different than 1994 in that freshman members are coming in not only against some of the democratic things they saw back prior to 1994 but they are an antiestablishment republicans, meaning they want to prove that they are not going to be under john boehner's thumb either. there is almost a period of time where they are going to not only are to prove that they meant what they said when they voted against obama care but they have to take on the republican establishment as john said and prove that we are different, prove that republicans are not the big spenders, the

earmarkers, and even some of the scandals, duke cunningham and some of those that came before. so, he is right. it is like your mom telling you when you are growing up you have your entire lifetime to establish your reputation and you can lose it like that. we lost it in 2006. and it is going to take time for us, meaning republicans, to demonstrate to our constituents and american people that we have it back. host: this viewer wants to go back to the budget conversation and ask specifically what would you cut? guest: i love that question because i not only -- i wrote eight budgets phaoufs and together with my colleagues on the committee and on behalf of the president. i have had to put up or shut up eight different times where i actually wrote a budget. my last one we identified about

$100 billion of waste, fraud, abuse, do you know indicative programs that -- duplicative programs that i outlined and not only did president bush put them forward as specific areas you could cut but president obama actually adopted many of those same ones that he september up to this congress -- sent up to this congress and congress hasn't addressed many of them. my days of having to put up or write budgets are over, but i will take any of those and put them forward as examples of places that you could start. host: back to the conversation about the tea party newcomers wanting to demonstrate this viewer tweets so-called tea party knocked out the old republicans. who is their tea party leader? old republicans. guest: referring to john bane

are? -- boehner? host: yes the challenges for him and finding consensus. guest: first of all, john boehner came in as a reformer and still is a reformer. he came in together with me. we were part of the gang of seven which, boy, that is a throw-back. we helped pose the check bouncing scandal here in congress and it is sad to remember on a day like today with charlie rangel that the exact same thing happened to another former chair as a result of that scandal and that was dan rostenkowski. john boehner has been part of the reform movement here changing the way congress does its work, how committees operate. he was a reformer when he was chairm chairman. he lost his job in the republican leadership, i think, because of his reform agenda and attitude. so i think it would be a mistake to assume john boehner is this

old republican like all the rest of them. he is about as reform minded as you will find in the old republican regime. i'm proud of the fact that he now has the opportunity to lead by example the way we felt needed to be the leadership model when we came in back in 1990 when checks were being bounc bounced. host: fort atkinson, wisconsin, ross on the air. caller: you talk about you think the republicans got the mental, maybe even the democrats, from the people. but i will tell you until you take the money out of politics like boehner, he is on the golf course more than he is at work. and who is he with? with the lobbyist. and the money comes in. and all parties, the people are you -- i know you are not in any more but they know it is all about the money and there should

be term limits so you are working for the people, not for your own best interests or re-elections. guest: first, i agree on term limits. i voted for them and i term limited myself and believed in it for chairman. i do agree a healthy amount of churning, getting new people into the process is healthy. number two, i think you were being facetious, john boehner is not on the golf course as much as in congress. he does enjoy golf but he does have something that is a good release as opposed to some things you could get involved in. third, you are right, there is too much monday in politics. -- too much money in politics but that is saying there is too much gambling in las vegas. you have to have full disclosure and transparency. the problem many get into is when there isn't disclosure. i think charlie rangel is a good example where he failed to even repo report.

these are the situations that cause most of the problems. t the fact that you know where john boehner receives contributions and is even receiving them from what particular interest. and the interest may align with your interests, who knows? but the fact that you know that is because of some of the reforms put it. it could be even more transparent as far as i'm concerned, but you are right, there is no question there is too much money in politics. but i believe disclosure and sunshine is the best antiseptic to that, not just assuming you can get rid of money in politics. host: back to the term of service for george w. bush as director of the white house office of management and budget. here is someone who once talked policy with you. jim nussle was in the white house when this began. guest: no question about it.

we had to be extremely creative working with secretary paulson to create then the tarp program, troubled asset relief program, which, while i know has become kind of a standard of people suggesting that was the mother of all government bailouts, i don't think there's anyone now who could suggest that it didn't work and that it didn't -- it not only wasn't -- even though it was imperfect, a good policy that came in at a time when that kind of creative policy was needed. and the proof is in the pudding. it not only did work but it is being paid back and it may be paid back nearly in full, which is a testament to the creativity at the time. so, there is no question it was a very challenging time to be in the white house. i believe president bush, as he stated in his book and he stated on the stump recently as he has been out talking about his book,

believes that they were the best decisions given the information that he had at the time and i would agree, even though they were not my philosophical bent either. i didn't have a better alternative that i knew would keep us from going over the cliff at the time. host: call from indiana next kathy, democrat. caller: good morning. how are you? first off i need to say, i will tell you, you are one slick operator, i must say. i mean the way you are spinning everything and doing it with a smile on your face. the new republican congress is coming in scares the life out of me. it is proven as of the vote yesterday. the republicans in the house were willing to dump unemployment benefits and because they are worried about the addition to the deficit, yet they don't blink an eye about

giving a tax cut to the wealthy, which as a matter of fact the majority of leaders in the house and senate are multimillionaires so no wonder they are fighting hard for the tax cut. it will add $700 billion to the deficit but they are not worried about that. they still not a one of you have ever said what are you going to cut. so it was social security, my husband pays dollar for dollar more on his wages to pay for his social security than, say, john boehner or tkaerl issa -- darrell issa. why don't you raise the social security tax for multimillionaires for them. why does my husband that doesn't make a quarter of what they make, why is he paying more? we know where you republicans

stand. it is all for the wealthy, nothing for us and y are willing to dump them, the unemployment. host: i think you made your point on that. guest: i'm sorry i'm smiling this morning. i tend to be a morning person so i apologize. part of it, i think, is where you believe the money starts. this debate in washington right now is very philosophical for this reason. there are some in this country who believe that the money starts in washington and then we pass it out to you and if you believe that you can understand why it is tax cuts for the rich or it is tax benefits for somebody or that the government is providing you. i think the difference in it election -- and it is a different philosophical belief. i believe the money starts with you and your husband. it is your hard work that

created the resources and it is your check that you send to washington, d.c. in the form of tax dollars that we should respect. so, the money doesn't start here. it starts there in indiana. if that is how you believe, you have a much different perspective of the world, number one. number two, i understand that you believe that none -- that all the republicans are rich. that is not true. and it does take, i think, a lot of experience to run for congress. but it doesn't necessarily mean that you have to be wealthy. we have seen a lot of examples starting with the president of the united states you don't have to be a wealthy person to run for office. i think that is a misconception that somehow this gives them breaks that nobody else gets. but i do want to start with that premise that if you believe that money starts in washington and we hand it out to you, you are

going to have a much different perspective than if you believe money is earnedy yourselves and checks in the form of tax dollars come to washington. host: latinos hear your -- let's hear your opinion on unemployment benefits extension. with the jobless rate stuck at 9.7% to 9.5% there doesn't seem to be jobs out this. what is the message to people who are actively looking for jobs and haven't been able and there is not an extension on benefits? guest: i'm not in congress so i will let the debate rage with those that are policy makers. let me point out a couple of things. this is not the first extension. there have been multiple extensions. number two, at a time when we are running record deficits and the pay-go principles are supposed to apply to everything, we have seen this year under the budget rules that they have been waived over 200 times for 200 different items that it is fine

to say we are going to pay for tax cuts if you will, under it principle that somehow the money starts in washington and you pay for money to go back into the pockets of people that earn it, which is to me a crazy notion. but you exempt all of the spending such as unemployment benefits. so defense spending is not exempt but unemployment bits is. tax cuts are not exempt. you have all of this crazy budget rules instead of saying it ought to apply to everything. that is the second principle. the third one is after two years of having this debate over how do you create jobs in this country, i think that i would much rather trust pete in texas talking about how he created 800 jobs in his factory in texas than anybody in that capital dome over there right now for how to create jobs. yet we're chasing pete and those jobs potentially someplace else in the world as a result of our tax policy, environment policy,

mandates, regulations. that is why we're in this crazy situation where our country is not growing and we are worrying more about unemployment benefits than about how we are going to yet jobs. host: social security benefits? guest: her example, i'm not exactly sure host: she wants to raise the cap. guest: her husband doesn't pay any more than i do. there is a limit on benefits. do we need social security reform? no question. anybody that has the guts to do it? i think we proved that no matter what your belief is on what social security reform ought to come next there are veryew yet willing to step up and reform the entitlement of social security or any other entitlement for that matter. host: for mr. nussle next is a call from berkeley springs, west virginia, karl, a republican. caller: i have a simple solution

for all the corruption in politics. if everyone on capitol hill, all the congressmen, senators, had to sign a contract with america to agree to an audit by the i.r.s. every two years, not only for them but their immediate family, you would see mass resignations up there. everybody would be scrambling to the airport to catch the first flight out. and you are going to have corruption in politics because it just -- there are too many people offering you money. to a person like me, it is disgusting. it really is. i'm a political junky. i watch it program every morning religiously. but it is getting to the point where it really is. but you know what? if charlie rangel had an r in

front of his name he would have been handcuffed and led off capitol hill just like cunningham. that is all i have to say. thank you. guest: i don't think people would have mass resignations because they were necessarily on the take. i think an i.r.s. audit would scare even the most honest taxpayer you could find. it is because of the complexity of our tax code and everything else. i understand what you are saying. that is why i smiled. i think you are probably right. you not only wouldn't have many people that would want to stay here. i would guess you probably wouldn't have anybody who would want to run for congress if you had an audit every two years. we have to file not only taxes as chairman, former chairman rangel discovered, but you have to file financial disclosures about your finances, which is a much higher bar than most taxpayers have to do. it is not a perfect system but there is more transparency and

disclosure to be a member of congress than in most occupations. again, it is not perfect but i know there are bad apples that spoil it for the rest and i know that this is not going to -- you won't believe me but i guarantee you most of the people who are here in congress are doing a good job, they are trying to do it the right way. they are not breaking the laws or on the take. there are bad examples that have spoiled it. unfortunately, they have made it so there is this popular belief that everyone is. it is unfair because it is not true. public service is still an honorable job that many of these guys do a very good job at. host: we have time for two more calls. ron an independent from florida. caller: congressman nussle, you republicans being so against

soci socialism, i don't understand how you can be for farm subsidies since most of the farm subsidy money goes to giant corporations or corporations. host: thank you, ron. guest: there are many of us, even from farm country, that over the years have worked for reforming those farm subsidies and have not only reduced them in many instances but changed them so that it doesn't artificially hurt the marketplace or warp the marketplace. there is more that can be done, no question about it. but i think if you look back at some of the reforms particularly of the hrlast 15 or 20 years yo will see a great change in farm subsidies compared to, let's say, 50 years ago. there is still more reform that needs to be done, but i don't think it is quite as black and white as you put it. there is a lot of gray area.

host: last caller from the pocono mountains from pennsylvania. rich a republican. caller: thank you for taking my call. can you hear me? host: yes. >> i would like to know how you can justify approximately $10 billion a month which is being spent on the war yet we are whining about tax breaks at this time of year and you want to cut unemployment and that people pay in into, some have been out of work almost two years but have worked for 20 years and i paid into it. i think you can throw all the spin and you are a perfect spin doctor. you are like a washing machine. guest: it is interesting so many of these things have been blamed on the republicans. a majority of democrats did not even support -- i mean a majority is still in democratic control so if they wanted to pass the benefits they could have. it is not just the republicans that believe we have to start

creating jobs and not creating more unemployment benefits or extending more unemployment benefits. i think it is both sides, not just republicans or democrats. i think it both sides that believe this. and, second, with regard to the war, i'm with you. i think the sooner we can end not only the conflict and bring our folks home but reduce the amount of spending that goes to it. there is a lot of waste in the pentagon. bob gates has identified a lot that needs to be reduced or removed or changed. so there is a lot of work that needs to be done but it is not either-or, defending the country or providing unemployment benefits. host: we're out of time but i have a closing comment or question for you. just a moment we will be talking with rob green a pollster here in washington and he has done a couple of polling questions on transparency and openness in the new congress and what advice people would give to the

incoming majority. what would yours be? guest: i think charlie rangel is a greating for freshmen right now. you have to recognize that hypocrisy in particular will be your number one thing to look out for. you cannot be the chairman of the tax writing committee and not pay your taxes. that is number one. number two, and this is the same advice i gave the transition team. in washington and in this job unlike the famous book by this title, you have to sweat the small stuff. it is the small things that will get you in trouble. it was trading stamps for cash that got dan rostenkowski. it was a few bad check albeit for big amounts that sent a number of members of congress to jail then. you have to sweat the small things because it is the small things often that will jump up and bite you and it is that openness and transparency of the process that needs to there if we are going t to keep that

.

with that. you point out one of them, it is not under control of president because appointed for a term, single person, not under the control of the fed. the statute has specific language that says the fed can't have anything to do with what the director does but finally -- and this is the most striking thing -- they are not under the control of congress through the appropriation authority because they are given by statute 10% now but then later 12% of the fed's operating funds to use, which comes out to something now about $600 million a year. let's remember what we have with the fed. the fed is independent of

congress and doesn't get any operating funds from congress anyway for a good and sufficient reason, we think. that is constitutionally challenged and been upheld. now we are taking another institution and grafting that on to the fed and giving them some of the appropriations that the fed has for itself through its management of monetary affairs. it doesn't get any relief from congress. the important thing to look at it seems to me the fed, independent as it is in a very informal sense, not formally so but informally independent of the branches, is at least made up of people appointed on a bipartisan basis in a collegil e form, a commissionlike formal. here we have a single person insulated from control from anyone and, in addition -- and i guess this couldn't have

constitutional implications but it is an amazing thing to me -- if you look at the range and scope of this administrator's power there is nothing that comes close to it in the government even at the cabinet level, nowhere. because what this person is able to do is regulate not only the largest banks but regulate the check-cashing first of all on the street corner in any little town in the united states, and everything from the top to the bottom can be regulated by this single person. and everything in between. it is a remarkable thing. i can hardly believe it can pass constitutional muster. >> you mentioned o.m.b., there's a provision that says o.m.b. can't review the budget either, which is just a little gratuitous dig. >> another question? >> could i speak to that one?

i appreciate the question. i wouldn't be a f federalist society meeting without that and i say that fondly in a snide way. but we have a new case. i'm sure that the separation of powers junkies in the audience are aware of the free enterprise case in which the supreme court held that the public company accounting oversight board was unconstitutionally constituted because it had what the court called a double layer of constitutional protection that is the members could be removed only for cause by the s.e.c and s.e.c members could -- it was assum assumed, although apparently not true -- it was assumed could be removed by the president only for cause. and the court says that is unconstitutional and we are

going to sever the former of those provisions so they are freely removable by the s.e.c and that will fix it. in holding that that fixes it, the court has, without exactly coming out and said so, reaffirmed the humphries executors case and reaffirmed that one level of removal protection is ok, otherwise you can't say now it is fine. so i think that, although the debate is eternal, especially in these auspices and it won't stop here, the latest word from the supreme court as of three months ago is that one level of removal protection for cause is constitutional. ok. second, we have the appropriations committee, ok, they are shut out of the action. i guess the nominal rules of

congress are the appropriations committees are supposed to stay out of policy issues and just look at wise spending of the money and the like. and everybody knows that is not fully honored and appropriations committees do get into those issues anyway. but the idea that it is unconstitutional not to let them do so strikes me as a little unusual. the fact that they chose to keep them out of this one seems to me eyebrow raising but forth of constitutional dimension. the fed can't control them? ok. but i guess we all know there was a political compromise regarding the consumer protection bureau and some wanted a fully independent agency and some thought that would be dangerous and so forth and it had to be within the fed. so you came up with this awkward compromise which i think nobody thinks isn't awkward. but it would be constitutionally ok to have it as the garden

variety independent agency, then this halfway house is probably ok, too. >> is it really a legitimate constitutional argument to say that the appropriations committees should not have any jurisdiction because, well, they are just the appropriations committe committees? >> congress has jurisdiction. they can change the authorizing statute. >> one of the powers given to congress, i thought, it my old-fashioned way about the constitution, as part of the separation of powers idea was that they had the power of the purse. that is maybe a little old fashioned. >> they don't have to exercise that power every time. i would go back to the fact that they fore swore that four.

they could change the law and assert it again. it is not a power grab and generally separation of powers law is more tolerant of people letting others do something than seizing something you should not have. >> i can't resist to point this o out. with respect to what ron said there is a march less dissent under the reasoning of the court's opinion the s.e.c is not an independent agency. the s.e.c, i resident, is not an independent agency because it was chartered in the gap between myers and humphrey when it was illegal to establish an independent agency. so the only way you could argue congressional intent that it was to be independent is congress intended to do something that was illegal. so it is an interesting sideline to all of this. >>

>> on the appropriation it is not merely the power of the purse but the constitution prescribes there should be no expenditure except pursuant to an appropriation by congress. so, really, it is an obligation to appropriate although as ron indicates congress can do it in different ways including perhaps the standing appropriation as they have done here. in the free enterprise case, while i agree with that analysis that there seems to be a blessing of humphries executor, the court did also say notwithstanding the willing relinquishment by the executive of his authority in the peek-a-boo agency that was still the responsibility of the supreme court to adjudicate whether the executive gave away too much authority. in that case they cured it perhaps a little too easily but they noted you can't willingly

relinquish it if the constitution wants you to hold it. >> next question. >> as was noted earlier, congress chose to act before receiving the report vested in the causes of the crash. others have pointed out some of the causes in addition to fanny and freddie lying in the community investment act regardless of the ability to pay differential reserve requirements favoring mortgages sewed into collateralized mortgage pools and so forth. to what extent does this legislation address the structural causes that were identified if even not formally reported to congress, or are we likely to have another situation because the same forces will be at work again? >> that is a good question. do you want to take that on, arthur?

>> i wrote that question. thank you very much. [laughter] >> somebody has been reading what i have written. i appreciate it, thank you. my view is that congress did not at all address the real causes of the financial crisis. when i say this, this is my view, not them the view of the fdic which may have its report in january. it may be different from mine. but this is a really important fact about this legislation, it seems to me. i can't make it into a constitutional issue but it is an important fact that what i think can be demonstrated to have been the cause of the financial crisis which is the u.s. government housing policy, was not addressed in the legislation that was purportedly intended to deal with the financial crisis. >> anybody else on that? >> i would add, i think the

statute partially addressed some of the causes. there is a title toward the end on mortgage products. clearly, when you allow mortgages to be made based on the teaser rate with no concern about whether the borrower would pay the fully amortized rate that is a disaster waiting to happen. certainly there's an attempt, whether it will be successful is to be seen, but there is an attempt to get sounder port lending. certainly if we have learned anything, it is that sometimes it is better to rent than to give someone a mortgage that will essentially ensure default and foreclosure. that is essentially what we were doi doing. as i suggested and i won't repeat what i said, i think to me what drove the crisis beyond bad lending, but the bad lending came from and was really run from and funded by these large

too big to fail institutions, fanny and freddie on the one side and big wall street firms and big banks that were competing with agrefannie mae a freddie mac on the other side and you had all sorts of subsidy and moral hazard problems and i don't think we have begun to deal with the too big to fail problem and subsidy problems. so, it is at best a very light effort. >> 27 million subprime loans outstanding are very weak mortgages and failed when the bubble started to deplate. 19 million of that 27 million were the responsibility of the government through fannie mae and freddie mac or f.h.a., and

the banks that were required to make these loans under the community reinvestment act. so, were those issues dealt with in this legislation? the answer is no. arthur is correct that there is something in the bill that provides for a qualified residential mortgage to be defined by the regulators, and to the extent that that is done, then the private sector could securitize mortgages that are of a certain quality, high quality presumably, if they don't create a qualified residential mortgage, if there isn't one that is being securitized then the private sector has to have a retainage of 5% for each mortgage it securitizes to give them skin in the game. but the point is that over two-theurbdz of all -- two-thirds of mortgages that were made up to the time of the

financial crisis, the crash, were made at the instance of and bought by and responsibility of the u.s. government. and when congress, in the dodd frank act, came to legislate on this didn't deal with it and if fact exempted f.h.a. from the requirements of this qualified residential mortgage, which means that f.h.a. can continue to make crumby mortgages for which the u.s. taxpayer will ultimately be responsible. >> on the issue of whether the dodd frank bill zeroed in on the causes of the financial crisis, you might study section 342 of the dodd-frank bill which requires all the new agencies required and the firms which will be regulated by the agencies to adopt affirmative action programs regarding hires.

next question. >> that was a brilliant lead into my question because i was going to build on the writings that are available at american enterprise institute about the government hand in the crisis. i will also add you have been warning about freddie and fannie for years. build on what the speaker was asking on one of the panels yesterday which is the "so what" question. the fed is enormously important and powerful. they forced bank of america to buy merrill lynch and told citi they couldn't by wells. they are -- buy wells. they are stage managing all of this. i personally think they are doing a pretty good job although others could disagree. but our comments, you made a number of lawyerly comments about what might happen in the

face of this legislation and the big grant, but i'm interesting in focusing on your thinking about is there something particular that you think will happ happen, not what they might do, but is there something you think they are likely to do that would be a skwre misjudgment we shoul concerned about? >> yeah. i can do that. what worries me most of all about the fed's power -- and i outlined in my remarks what enormous power they have over all of these very large institutions. and the thing that bothers me and worries me, having in my practi practice, practiced before the fed for bank holding companies i could see the enormous power that they have over the decisions that are made by these bank holding companies. and you would say to your client, wait a minute, they

don't have the power to stop you from doing this, or they don't have the power to compel you to do it. and the client would say yes, but they are our regulator and that was the ends of it. we are not going to take them to court and we are not going refuse to comply with what they require us to do. so what we have here and what i think will happen -- this is a prediction -- is that we are going to create a pier -- partnership between the government in the form of the fed and the major financial institutions in this country so they will not be competing with one another as turning to the fed and asking by your leave can i go into this business or that business, can i enter lending on the west coast where i will be competing with bank of america, or do i have to stay here on the east coast.

that kind of thing will happen because the fed will have the ultimate control over all of these institutions, and this is scary. >> more than they have already? >> yes. but today they only have the power literally to regulate bank holding companies and some banks. in the future they will have the power to regulate banks, bank holding companies, insurance companies, insurance holding companies, securities firms, finance companies, hedge funds. you name it, if it is a large financial institution, they will be able to regulate it and provide for everything that is at the heart of the businesses of those companies, including their activities. because the fed regards their activity as too risky for them, the fed can terminate that activity. so, this is a remarkable grant of power and ultimately turns those companies into tools of the fed. that is why i have always called this act bottom care for the financial industry.

>> i would add to this -- yes, obama care. i would add that you don't have to be big to be covered. there was an article in the financial times two or three days ago about this and the pwebig banks and institutions trying to figure out who is going to get caught in the net and hedge and equity funds trying to figure out how to escape the net since they have no governmental deposit insurance or fed window or connection. then they quote from banger fearing competition the bank er said as many more financial institutions as can be brought under the net the happier we are. >> the question for the panel, the creation of the consumer protection bureau already has

some apparent flaws, perhaps constitutional flaws. but the administration chose to perhaps exacerbate those issues by, instead of appointing the person who now leads it as the direct director, which is clearly required under the act, creating a czar to run it. my kquestion, what type of additional legal challenges could be expected for the consumer protection bureau given the fact that she's already creating an infrastructure and putting together things that the director was required to do? >> if she actually starts to engage in rulemaking, which i'm sure she will do, i think that would be a violation of the clause. she was not confirmed by the senate to the job the statute

does in this instance require congressional -- she's been given a -- she is not even the director so she would be acting without authority if she started issuing rules. now, what theories, appointments clause, vacancies clause, lack of confirmation, i think there is a problem if she starts to do anything stability actively. >> i agree on the substance, but i think it would be decided on a more mundane level. just a question of the scope of her authority. there are certain things only the director can do under the statute. and if she did some of those things that would probably occasion legal challenge. but i can't believe this hasn't been thought about carefully and they came one this for -- torture tortured compromise but to involve her in the planning process in ways that do not implicate legal rights and therefore trigger these potential challenges. but you could envision perhaps

crossing that line either inadvertently or more likely just daring to do it and thinking they will get away with it in a particular case. but i think it would be a straightforward question of authority under the statute rather than the larger constitutional issues dominating it. they might lurk in the background to be sure. >> we are getting to about time to close but i wanted to leave with you this observation. with all of the heavyweight legal talent that we have not only here on the panel but in the room, i did a google search last week and found that the constitutionality of the dodd-frank bill has been challenged exactly once so far in a lawsuit in knoxville, tennessee, by a bank that says that the setting of debit fee charges under the act is

unconstitutional. so, all of these questions still have to be sued on. with that, we will leave you. c-sp [captions copyright national cable satellite corp. 2010] [captioning performed by national captioning institute] >> next judge dennis jacobs talks about national security and the constitution. then we have a talk at the federalist society. then your calls and comments at 7:00 on "washington journal." >> live this weekend join our authors as book tv heads to the 27th annual miami book fair international. follow the authors and panel

discussion on book tv. >> earmarks account for less tan one half of 1% of the federal budget and they are part of the agenda. what earmarks are online at the c-span video library. sever search programs explaining earmarks. it is washington, your way. >> also speaking at the federalist society judge dennis jacobs nominated to the federal bench by president george h.w. bush in 1992 and elevated to chief judge of the second circuit in 2006 by president george w. bush. he discusses how the constitution affects national security issues in the courts. >> i would like to go to one of those breakfasts. i want to call it to your attacks because i think there are some that have not gotten notice and any alumni of those is welcome.

>> this memorial lecture series started with ted olsen's inaugural lecture which reminded us of what it means to be an american and how our legal tradition is a critical part of our identity as americans. both ted and barbara understood this connection. we want the lecture series to remind lawyers of it so they foster legal principles that advance individual freedom, personal responsibility and the rule of law. we are delighted to have ted olsen with us today. ted is followed by ken starr, now president of baylor, robert bork, just scalia -- justice scalia, judge randolph, vice president cheney and chief justice roberts and judge aoed difficulty jones and judge douglas ginsberg. we are pleased to have the honorable dennis jacobs to follow these lecturers to the

platform. examples the chief judge of the u.s. court of appeals for the sebcond circuit. he was appointed in 1992 where he served since including as chief judge since 2006 his education was masters in english listen at the advanced age of 21 from n.y.u. where he completed everything required but a ph.d. for the dissertation. then the law school stole him. he received his j.d. in 1973. from then until the appointment to the court of appeals he spent his lal career litigating on commercial matters where he became a partner in 1980. in addition to being deeply versed in the law, judge jacobs has a superb reputation across the philosophical board for fairness and quality of his work. he doesn't stop with the law. given his lit remember

background he -- literary background he reads widely and has a love of music. he has an enormous source of knowledge about catastrophes. however, the rumor that the democrats after the 2010 elections and republicans after the 2008 elections consulted him is apparently unfounded. one or detail about our speaker, the federalist is grateful for many things but partially to help stuff envelopes for meetings we we first started our new york city lawyer chapter in the mid 1980's. we have appreciated his speaking to us a number of times. one other interesting fact i would mention about judge jacobs before call him to the platform, when he was nominated, the senate was shockingly enough

quite divided. and senators were placing holds on the president's nominees. senator biden was care of the judiciary committee. one senator placed a hold on judge skwraeublgs and for -- jacobs and for various reasons he dropped the hold with having a different senator place the hold on judge jacobs. that was a fairly common practice. but something went wrong. the hold was never transferred. as a result, judge jacobs has been on the bench now for the last 18 years. [applause] >> and we were honored to have him committed to rule of law to present the 2010 lecture. judge jacobs. [applause]

>> thank you for the opportunity to deliver this lecture named for barbara olsen. she was a kphop commentator whoe about compelling matters with directness, can correspodor and. i will talk about lawyers at r war, more particularly the professional elite and bar associations that are at war with the military of our own country. i'm not the first to notice that among educated classes and cadres in this country there is a prevailing hostility to all institutions that are organized on military lines or that assimilate military values and a suspicion of the people in these institutions and professions, the police, the f.b.i. of course, even the boy scouts.

this is nothing new. i'm not parting the curtain. it is part of a wider current of fashion. to borrow a phrase, whenever many americans consider the milita military, the worst thing they can bring themselves to manual is the only truth they know. elsewhere in other fields and professions it may be just a matter of fashion, a snobbery, ingratitude. but we need to take this phenomenon seriously in our sphere because of our power, our influence over the constitution, our weight in policy, and the roles we have been given and have taken in american life. with us there are consequences and features beyond the cultural divide. it becomes a great and consequential problem. what we hold in trust should cause us to examine ourselves by fair standards even if we are

forth flattered by what we find. yet so far as i can see the disjunction between the military and bench and bar is unremarked on within our profession. i start with the safe premise that antimilitary animus is pervasive in the elite legal communities. the bar association, large law firms and their pro bono projects. the law schools and their works. the courts, judges, jurisprudence itself. what can be called big law. i will talk about how this came about and then i will make several points about it, most simply this is unbecoming for the legal profession and betrays gratitude, distorts the law and it is down rigright dangerous because ironically -- [applause] >> because ironically it weakens rather than tightens civilian

control of the military. the isolation of the military can be explained in part by the existence of the all volunteer force. among baby boomers and upper reaches of legal profession service in the military has been rare. it is rarer still among their children. those in the military especially in the enlisted ranks are just assumed to be mentally limited or at best luckless refugees from unemployment in economically disdressed and -- distressed and backward areas of the country. to be sure they are not like us. this is a well rounded impression that the demographics and characteristics of people in the military differ from the make-up of people that form the legal elite. robert gates observed at duke university that the propensity to serve is most pronounced in the south, mountain west and rural areas and small towns nationwide while the percentage of force from the northeast,

west coast and major cities continues to decline. so, the military is composed of southern and mountain types or gulf dwell erstwhile we on the causes many of them are rural. while we are urbanites, the military maintains secrecy. while we profess an about in openness and disclosure accepting the attorney-client privilege and our own work produ product. then there is the money. and the military doesn't have our share of which will, sociologists, gay, volvo drivers, english majors like me, persons with handicaps, the elderly -- me again -- and so on. and, to be clear, i am an example of the unicoastal urban

legal elite. the hrelittle island i live on manhattan. i drive a european car and i didn't serve in the military. so i'm not here engaged in special pleading. given the differences between our spheres our encounters would be limited in any event. but in the elite institutions of the bar and legal education, people in the military are actually sequestered or excluded altogether. there seems to be no effort in the hrlaw to correct this exclusion. in the law schools the separation is policed. law skchools welcome to their faculties philosophies, sociologists, et thinksists -- ethicists. political scientists even criminals but there are few military on the faculty.

that is even on the biological law of war. human rights law and treaty law. i asked the medical of a distinguished law faculty how many of his colleagues served in the military and after some thought he said one. adding after a moment that the service was in the israeli army. the banishment of rotc from campuses has a counterpart in the longstanding ban on military recruiting in the law schools. today there is the need for federal funding prevents the actual exclusion of military recruiters but i'm tol that in hiring season some circulate a cautionary memo telling students to stay away from military recruiters and other schools take other measures that the result that military recruiters sit without a visitor in effect

a design. although official statements may say otherwise, it would seem in most elite law schools military service is not credited as public service for purposes of scholarship funding or preserve preferenti preferential admissions. it is probably easier to claim public service by having done voter registration in a cemetery than service in the navy. thus, a situation is thrown up to prevent recruitment in the law schools. i know there is an article of faith there is a principled ground for hostility and discrimination. many feel strongly about the policy called don't ask don't tell. but the cultural ail -- alienation long predates that. it was a come the current of liberal and academic passes

during the vietnam war and since then it has not abated or even much developed. young people who had been indoctrinated to recoil all things military were taught to attribute it to the policy on gays. there is unfinished business in it country when it comes to gay rights. opposition to the don't ask don't tell policy is fairly argued and unresolved. but it also has a pretextual element. if don't ask is no longer not asked there will be other grievances. women excluded from combat. hole phobic post -- hostility. prejudice never runs short on its fuel of rationalizations. it must be said that the citizens of a republic should be wary and skeptical of their military as they should watch

with caution over all government institutions. even lawyers should be watched. but distrust of government power by the legal elites is largely suspended when it comes to many centers of government power established by lawyers. the e.p.a., nlrb, eeoc, osha, not to mention the courts. as to these institutions the bar and judiciary tend to be indulgent, defend -- deferential and trusting. but the distrust manifested by american legal institutions with the military is a fixation, a calling and is considered a badge of honor. some of the hostility against the military by the legal elite has to do twith the culture elite.

between upper cast lawyers and military profession there is a competition for prestige, resources, influence and authority. but it is an uneven competition among our natural advantages are all the legislatures and courts. so, there are few external constraints on our exercise of pow power. internal restraints are deficient as well because as a profession we are not self-examining. our critical and investigative skills are always other directed. and law and competition doesn't get along well with others. we tend to press our advantages without apology and celebrate our dominance as judicial independents and the rule of law. this competition has become intensified by war. lawyers and judges are of the view if something is of great importance it can be safely left

to us. we lack humility in approaching great matters. we tend to assume adversarial hearings and expert testimony will render judges omni competent and fit to decide the great questions and a legal mind applied to a constitutional text is the highest order of decision making. our mindset is if something is of greatest consequence such as speech, thought, expression, race, identity and sexual iity, property, life and death, it cannot safely be left to any ultimate influence or insight but ours. armed conflict is one of those great matters. civilian judges have reserved the last word on all consequential matters. so we think it normal for us to exercise power over the taking and detention of prisoners, interrogation, conscientious

objection, surveillance, military tribunals and so on. but there is a structural probl problem. the legal profession is not vested with responsibility for defense of the nation. indeed, it is a positive virtue of our system that judges are not held accountable for our decisions. but in matters of defense and intelligence it is critical that there be scrupulous accountability of a kind that can be located only in the political branches. if critical measures for defense are pleaded by lawyers in terms of constitutional questions, and if judges rule on them as constitutional requirements, accountability fails. and a flexibility needed in the areas both tactical and moral is lost. this state of affairs has large and highly ram my fiduciary consequences for law and country. no doubt structures are needed

to avoid arbitrary military abuses. the branch of our profession that performs that work is the judge advocate general corps. they are among the best of us and work full time for the public good without contingency awards. yet in our elite legal communiti communities, military lawyering is dismissed as unworthy of practice or even study when it occasionally it reaches public attention that a military lawyer is zealously representing a client in court-martial or military tribunal it is assumed the lawyer is a singular anomaly, performing an act of courage or defiance and is risking retribution. at least somebody as good as we are. thus, students and civilian lawyers are schooled to think that court-martials or kang georgia review -- kangaroo courts are by officers of high

rank and uniform code of military justice lacks the essential attributes of due process. this is a cartoon. i know little of military justice. fualaul students can -- few law students can take courses yet no less a trial lawyer than f. lee bailey eastbounded the fact is -- observed if i were i would prefer to stand before a military tribunal than any court, state or federal. it is bad enough that service in the military is not honored as service pro bono publico. it is worse that insulation 2010 the little elite and military impedes the best graduates of our l schools from contributing to the culture of justice in the military and civilian legal communities are

detached from the insight of distinguisheded lawyers and judges in the military. in other times the military has been a place where people of different advantages in life rubbed together and came to know even other and trust each other, must have made a difference we citizens of privilege, expensive education and prospects interacted closely every day for years with people who had none of these advantages. the privilege to wield influence had been in community with the rest. i discussed these subject was my colleague judge danny parker who was a trial judge. to his observation, the cultural divide has had an impact on sentencing. once judges had known, shared experience, even camaraderie with performance drawn from the class of people who appeared before them for sentencing. they could appreciate the

strength and peace and instincts of people without a head start or good hand in life. judges had known people without advantages, their loyalty, service, courage and honest roles in life and hadden countered them as members of ranks other than the criminal classes. the harsh sentencing regimes that prevail in all of our criminal courts may owe some of their bite to the disjunction between the military and the rest of us. i said that war has intensified a competition between the legal elite and military. i think that is why the legal elite is deeply reluctant to acknowledge a war footing, a predicament that gives advantages to the military and requires military calculation and military response. the military branches claim resources, gain influence and decide policy and strategy.

they have the insight and critical experience. they become the heroes, however unwillingly. because war elevates military influence in government, policy and constitutional imperatives, it thereby discounts and subordinates our own. and displaces the legal elite from its dominant sole place of prestige in american life. both lawyers and soldier s has indispensable roles in defense of our constitutional governmentment our constitution needs both defenses, the internal and external, with a certain amount of flexibility and reciprocal accommodation. while some competition is inevitable the antipathy of the lawyer elite for the military makes the competition destructive. constitutional values, due process, civil liberty and civilian control, are pressed into service as instruments for

preserving our dominance. it is not surprising that this competition manifests itself most obviously in the ongoing debate over how to classify the threat from islamist terrorism. is it a matter of national defense or law enforcement? fair arguments lie on both sides. but to my observation the perspective of lawyers is sever interested and promotes the salient role of the lawyer cast. many lawyers and law proffers deny that we are at war. lawyers have a stake in peacetime and while we all do and the military most of all, peace is a time when soldiers are a contingent asset and lawyers are ascendant. so the lawyer elite has an interest in denying the war or denying that we are in need of military intervention or expertise or a military point of view that is decisive.

competition and antipathy also manifest themselves in pro bono activity and affects lawyers' ideas of what the public good is. in the fiasco following the 2000 election i watched on tv ide idealistic pro bono lawyers arguing to election boards that absentee ballots mailed in by inactive service abroad should be discarded by late arrival. maybe the ballots were late and properly disqualified. but i would not have accepted such an advocacy role. and the young pro bono lawyers avidly doing that work would have scorned with disgust the work of narrowing the voting opportunities of any other group in this country. i suspect that every last one of them would happily assert pro bono the right to vote a felon in jail. but there was something alien about persons serving in the

military and it warped their idea of the public good. by the same token, many inmates of the facility at guantanamo bay fine themselves well represented if not actually overlawyered. assistant attorney general ronald welch tells us that 34 of the 50 largest law firms in the country have advocated on behalf of guantanamo detainees. yet in some family carts soldiers and sailers are unfit parents because they are deployed in -- deployed abroad. the defense of guantanamo detainees has been cast as a courageous act vindicating the finest tradition of our profeson to protect the accused and despised. i hesitate to judge a lawyer for taking on a representation many lawyers and judges in the past have had to pay a lot for their

acts of conscience. the civil rights movement generated heroic models for our professions among judges and lawyers. but, really, it is hardly an act of courage for lawyers to do the most fashionable thing a lawyer can do nowadays. to do so to the applause of the bar association, law schools and media and to enjoy the prominence and glamour of advocating on big consequential issues, not to mention the thrill of representing clients who would kill their lawyers if they could. that is if military types were not stand big. -- not standing by. [applause] >> my experience is people do not fall all over each other to perform lonely acts of courage so permit me to doubt the outpouring of legal resources for the detainees is a reluctant duty or one of those courageous

and selfless acts the wall street law firms. something else drives this phenomenon. the main field of struggle in the competition 2010 the military and legal community has to do with civil liberties. lawyers have an interest in exaggerate i exaggerating threats to civil liberties set to be proposed by measures designed to protect the nation. consider the civil liberties litigation that arose when the nation's librarians were required to let the federal government see who had taken out various library books. it was just such an inquiry by the f.b.i. that allowed them to identify ted kaczynski as the una bomb. you may remember his manifesto was cribbed from books he had taken out. that excited no anxiety among civil libertarian lawyers. why should it? i remember that every library book had a card in the back cover that recorded the name of

ever person that borrowed the book and when. the idea that this controversy involved a threat to liberty was overwrought. but it is of a piece emotionally with other litigation challenges measures for a defense of a country under attack, involving surveillance, data mining, p.o.w., habeas corpus, guantanamo and other things. in wartime, such litigation allows lawyers to cast themselves in a heroic and dominant role as the real defenders of the constitution in leg of course with the journalists who chronicle their akhaefplts on -- achievements on behalf of the constitutional order. why do lawyers worry? what do we lose when the military rides in to join us in preserving our constitutional system of government? the problem is that the legal establishment and military are not exactly engaged in the same

project. for lawyers, the constitution is often a means to other ends. if i pointed out in an opinion on once, constitutional law proffers may note -- professors may note the main springs of the constitution but many use their technical skills instrumentally the way a good safe cracker regards the safe. so, anything that diminishes the primacy of lawyers vis-a-vis the constitution is something that undermines the claim of entitlement by the elite bar and legal professors and judges to control the constitution itself. whatever the legal merits may be of the litigation i'm talking about and i have no problem approaching the cases, the theatre of litigation allows the lawyer cast to set itself up as the true defender of the nation and its people. the more numerous the civil

liberties issues the easier it becomes for litigators, law skl clinics, bar committees and summer associates to present themselves as the authentic defenders of the constitution in actual opposition to the military and not incidentally in actual opposition to the law enforcement and intelligence professions that value military service and internalize military values. upper cast lawyers can't just join the other side. we differ in skill set, ttical imagination, culture, values, attitudes toward physical risk. we cannot shine or prevail in the other sphere. and what is at take is a great thing. ultimately in the bottom lawyers in the military are in competition for honor. the word has lost current seu

but the concept has lost none of its potency. the greatest danger for our country is structural. to maintain civilian control we need civilians to understand the medical tearment what they do, who they are. how weapons work. which are needed. what they should cost and how to allocate resources. central, tactics, intelligence, logistics. whom to put in charge and listen to. when to check the military, when to mobilize it. and when to deploy it. all these are things that i don't know. it doesn't do to lodge them in the hands of people who are ignorant of military life and culture and worse to put in charge civilian leaders who are suspicious of military just as such power shouldn't be in the

hands of jingoists or ignorant military groupies. it is not necessary or possible that all our leaders should serve. but i do think that the skills needed for effective civilian control are required only by the management of polling responsibilities, weighing of values and consequential action taken stkaoeufrl in ambiguous -- decisively in ambiguous situations. not by a courtship on an international tribunal or other methods. it cannot be easy to heal the breach between lawyers and the military. whenever cultures merge on common ground, there is puzzle me ment, adjustment and

recalibration. there is no way to do this without discomfort. so, first it must be embraced as a worthy project. the law schools need to be unseal unsealed. pro bono activity should be credited as much by service in the military as by suing it. [applause] >> the judge advocate general corps should be rocked are as integral to the common project of justice. those in military service should be recognized by us as peers in the defense of our constitutional republic. and the military calling should be understood to be a profession among profession, ancient, honorable, ethical, expert and indispensable. thank you for listening.

[applause] [captions copyright national cable satellite corp. 2010] [captioning performed by national captioning institute] >> now keynote addresses at the federalist society convention discussing the g.o.p. agenda on capitol hill. the federalist society is an organization of conservatives and libertarian leaning attorneys. this is an hour. >> good afternoon, ladies and gentlemen. i hope you are having a good

couple of days here at our c convention, the federalist convention, the federalist society. it is my privilege this afternoon to introduce u.s. senator-elect mike lee from utah. he opens his online bio with the following sentence. mike acquired his love for the constitution early on whale discussing everything from the due process clause to the second amendment around the dinner tab table. this guy is serious. now, lest you believe this is a mere retor confidential flourish -- rhetorical flurry refresh i have in on good authority that people who saw and heard him on the campaign trail he spent much time talking seriously and specifically about the limits on government power