tv Memorial Service CSPAN June 25, 2011 10:30pm-11:30pm EDT
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against wyatt concerned federal vaccine law and whether it prevented defect claims against vaccine manufacturers. williamson against mazda motor questioned whether safety standards preempted state tort suits against ottoman the factors. finally, a court case concerned federal drug regulations applicable to the generic drug manufacturers and whether they preempt state law tort claims alleging a failure to look -- a failure to warn. what did these tell us about why there are some of the pre- emption cases? they tell us pre-emption cases are sites of ongoing disagreement about multiple issues simultaneously. pre-emption cases foremost are cases about federalism, about federal-state relations. people care about about this. that often end of disagreements
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over the government regulation of business. in the roberts court, people care about about government regulation of business. when they care enough, then make a federal case out of it. pre-emption cases also indicate conflicts over how certain social problems are best regulated -- through to an agency paradigm, a regulatory paradigm, or two judges and common-law decision making? finally, pre-emption cases often arise when states take action with respect to hot-button issues of the day. for example, immigration reform. for all of these reasons, we have a lot of pre-emption cases. i do not think that is when to change. i want to add an additional reason or hypothesis. that is because pre-emption cases are hard.
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they are very hard. why are they very hard? because the touchstone is congressional intent. congress often does the rest of us no favors as we try to figure out what congress had in mind when they wrote a law. do we look at the structure of the statute? do we look more broadly at statutory context, including history and a broader congressional purposes? do we look at all of them, or only some of them? i think the fact that pre- emption cases are difficult because pre-emption -- because congressional intent is so hard to discern is that judges will make judgment calls. those are contemptible. the will and that this agreement. the court will be moved to disappear -- move to intervene and make a judgment call. how does one go about divining congressional intent? that is not easy to answer in
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the abstract and across the board. the same justices do with the question of congressional intent differently in different cases. i think two of the most important cases of the term illustrate this nicely -- waiting and conception. in writing, - whiting, the court said this arizona law which imposed sanctions on those who hire illegal immigrants, was not prohibited -- was not pre- emption of federal immigration law. in the majority opinion, chief justice rehnquist emphasized the preemption provision of the statute, specifically the reference to licensing and
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similar laws. it argued that arizona had enacted a licensing statute which fell within the scope of the savings clause. in dissent, justice prior -- breyer made arguments for why congress could not have had in mind what the court attributive because the savings clause would blow up the preemption provision and undermine a statute more broadly, congress's concern about protecting unauthorized workers from race or national origin discrimination. that is a case in which you have one court arguing language structure and the other arguing statutory context. contrast that with conception. the court argued it was a law that the in class-action unenforceable.
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the california rule stood as an obstacle to the execution of the full purposes and objectives of congress. you have the same set, -- split, essentially. you have keyed justice roberts, scalia, kennedy, and coleco in the majority. and you have the others in dissent. in this case, justice scalia does not emphasize the language of the federal arbitration act. instead, he emphasizes what he called the principal purpose, which he described as insuring enforcement of arbitration agreements. the discretion allows for a streamlined procedures pertaining to the type of dispute. arbitration interfered with this
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when it was compelled by state law. in contrast, justice breyer emphasized the plan language of the statute, and specifically he argued that what california had done fell directly within the spoke -- the scope of the act exception permitting courts to refuse to arbitrate agreements for the revocation of any contract. he was treating class arbitration waivers the way it treats the other contractual waiters found to be unconscionable. you have the same justices trying to define a congressional attempt -- intent in different ways depending on the case. that suggests to me divining congressional intent is difficult. so that is why so many cases. the second question is whether it is fair to characterize roberts as a pro-preemption
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court. it is one term with only five cases. if you look at the numbers, the boat is 3-2. the court found preemption in three cases and did not in two. that is as close to 50/50 as you can get with an odd number of cases. however, not every case is worth the same amount as any other case. i think white tin -- whiting is an important case. but i think concepcion is one that is important that did not stand against pre-emption. this presumption has been around for many decades and is designed as a protector of federalist values. that is federal law can reasonably read not -- if federal law can reasonably be read not to preempt state law, it will be read that way.
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i also think [unintelligible] is an important decision in which the court splits with the chief justice, scalia, kennedy, and alito on one side, made it hard to make a case of impossibility preemption. they invoke the doctrine to say that federal law immunizes drug manufacturers from state law claims because generic manufacturers cannot change the labels on their own, and might brand name manufacturers. generic manufacturers have to petition the fda. you have justice sotomayor saying we have never found it so easy to make out a case of preemption.
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the majority, she wrote, presumed the drug manufacturer was not obligated under federal law to petition to change the label if the manufacturer was chris with the label did not provide adequate warning. she would have found at the very least the manufacturer was obliged to bring such a petition to the fda. the court found otherwise and again did not mention the presumption against pre-emption. in a very significant development, a plurality of the court, in a part justice kennedy did not join, appeared to reject the presumption against pre- emption. this is a major development. it is four justices, including the chief. it is based on a novel, texture list, and original interpretation of the supremacy clause that arose in a law
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review article by caleb nelson of the university of virginia. it was left to justice sotomayor to reject the move toward a more original list understanding of the supremacy clause. i think it is an important sense in which the roberts court is a pro-preemption court. but the jury is still out. justice kennedy did not join this part of the agreement, but did join opinions in which a presumption against pre-emption makes no appearance. the last question i want to talk about briefly is why this matters. if this is a pro-preemption court, is there cause for concern from a federalist perspective? i think the answer is yes. i am relying on the scholarship of my colleagues at duke, ernie young. he says if you care about federalism you ought to care about preemption. we live in a world of very broad
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congressional power when it comes to the commerce clause under article 1, section 8. if you look at these cases together, there is significant congressional power. i do not see that changing soon. but pre-emption cases have been all the time. they are the ways in which federalism is worked out day to day in our system. the more preemption this -- the court finds, the less there is left for states to do. the less you give them options in the federal system -- you ought to care about the presumption decisions in this court. >> i agree with most of that, but the very end up so much. i think it is a mistake to talk about federalism with a capital f. as if every issue of division of power between the national government and the states is driven by a single federal laws
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and principles. you are either for the states or for the federal government. what we have is a very complicated allocation of authority to four different areas between states and federal government. there should be no consistency across each of these areas, because the constitution itself gives congress power over certain things and not so much over others. i would say, looking at the pre- emption cases, that three of them have to do with product liability, corporations to distribute products on a nationwide market, where congress has set up a comprehensive regulatory scheme to violate safety and warnings and so forth. i would have thought that cases of this sort were at the heart of the kind of power the framers did give congress -- that one of the key things about the essence of the commerce clause was to
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create a common market within the united states, so the goods and services in the national market can flow freely from one state to the other rather than be balkanized by different concerns. to my mind, to be pro-preemption with respect to product liability, where there is a comprehensive federal regulatory scheme, makes a great deal of sense. i am much less persuaded in a case like concepcion, where it seems to me that the question of enforceability of particular contracts between employers and employees is a traditionally state function. i am not saying it is unconstitutional for congress to get into that. but there is no obvious national uniformity and no obvious need because of the common market
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concern. i would say that if we were interested in a more textured idea of federalism that there should be less of a presumption in favor of preemption there than in the others. i do not like the idea that we should treat preemption and federalism as one size fits all. i think different categories of these things are different. i would say the whiting case falls within another area of overwhelmingly federal interest. immigration is something which is a national concern. i think that case is probably rightly decided, but only because congress itself said that states may use licensing laws to achieve their own local regulatory purposes, not because of any kind of the presumption in favor of states are against
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pre-emption. >> i think i agree with much of what might says in general, although i think i disagree with some of the specifics. i think you are exactly right that it is not just about being for the states are against them. i think you need a nuanced understanding of what kinds of problems are for the federal government and what problems are for the state. i think constitutional statutory federalism overlaps in that way. i think where i disagree with the specifics is the way you characterize the fda regulations in some of these short liability cases as a comprehensive federal scheme. if it is comprehensible -- and -- is comprehensive, the federal government is regulating it and there is not much left to the states to do. i do not think that reflects reality. everyone knows the fda does not have the resources and
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personnel to monitor brand name and generic drug manufacturers. the fda relies on these manufacturers to bring it to fda attention if their levels are not up to speed. the court assumed in its decision that the generic manufacturers or under a state law obligation to petition the fda to change the labels. nonetheless, the court said the federal law that gives them an obligation to bring it to the fda pre-empts state law of tort liability claims. i think my disagreement in the details is about how comprehensive the federal scheme is here. i think it is not just a presumption against pre-emption in general. it is a presumption where the states have long regulated. some of the court liability cases at issue are areas in which states have long regulated and the federal government has not regulated as
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comprehensively as some of your comments would suggest. >> we are almost out of time, but i hate to wrap things up without saying something about the walmart case. >> walmart was a gigantic class action involving 1.5 million plaintiffs. women at walmart brought a claim that said in essence that the walmart policy of giving a great deal of discretion to lower level managers and a highly decentralized system of promotion ended up hurting women. that these decisions were made in a discriminatory fashion and therefore the entire class of women ought to be able to bring a suit. i think there are two key pieces of the decision. one has to do with procedure and one with discrimination. the procedure rule is simple. for those of you back in the days of rule 23, under rule 23 be to and, in order to bring a
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class action you typically bring a claim. for example, a housing desegregation plan. everyone in the class is going to be affected by the same order. the plaintiffs brought their claim under rule 23 b2 even though they were seeking individual back pay awards. this is the back pay awards did not predominate over the common claim. the court unanimously held that this was inappropriate. those back pay claims were more importantly brought under 23 b3, which allows for notice and opt out. the more important case is employment discrimination. this is where the court divided. justice scalia said for the majority there was no common claim among the plaintiffs of discrimination. but it was not enough simply to
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say there was a common policy of giving our level managers discretion. justice ginsburg said that was sufficient to satisfy the requirements of rule 23a, the commonality requirement. as often happens, what is really moving the justices of the court are completely different pictures of what discrimination is. justice scalia describes a more conventional account, potential actors intentionally discrediting women. he cannot imagine that 1.5 million women are sharing the same crime. he imagines there are better and worse actors, some people who do not discriminate and others to discriminate quite a bit. justice ginsberg says the discrimination we are talking about is subconscious. this is pre-thought. it is the way we think about women in the workplace. it is the fact that we are less
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likely to see women being successful managers. that in fact any discretionary decision. justice ginsburg find it easy to imagine this constituted discrimination that would affect all women. she cites a study of orchestras. when orchestras began to use blind triads, where you could not see the gender of the person behind it, the number of women in orchestras increase dramatically. why was that? it is not as though the people before that thought they did not like women. the study suggests that what happened was that people used to think men were better musicians. so when they heard a man play thought his music was better than when they heard a woman play. when you blinded them to the gender of the person behind the screen, you increase the number of women. that is what justice ginsberg thinks is going on. i will say by way of conclusion that social science does back justice ginsburg. there is a lot of evidence that
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we all have these pre-cognitive biases. before we think about what we are going to do, we have these ways of classifying people. they do not disappear in the workplace. if you think about what the court can do, you might ask this question. harcourt's well-suited to dealing with structural inequalities rather than bad actors? our courts well suited to dealing with questions of implicit motivation, pre-card to decisions that affect everyone? or is it possible that in the path to equality the courts can only lead us so far and the lawsuit may not be the right way to correct workplace inequality going forward? >> thank you. there are more cases we could have talked about, but i hope you will agree it is better to do a thorough job of the work cases rather than superficial coverage of a lot of cases. there is more to read. the opinions are there. i am sure if time permits after
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we conclude that if you have a question or two for the panelists the mike linder. we have not included a question and answer session. i apologize, but you can understand why. it has been difficult to do at all. you have been a wonderful audience. thank you for being here this morning. chief justice, i turn it back over to you. [applause] >> we are now at the conclusion of the program. i have a few things to make. the first is to some phelps and his staff. things have gone smoothly. i think we owe them a round of applause. [applause] things have gone smoothly, particularly when you consider the number of people here. people think it must be easy to do. it has involved a lot of work. we are appreciative. judge keenan and all the folks from west virginia, thank you
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for planning the great program. it has done well and been well- received. i think everything has been great. i declare this the best caucus we have ever had. we know conclude the 77 judicial caucus for the fourth circuit. have a safe trip home. i think you. -- thank you. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011]
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>> the supreme court is now available as the standard and enhanced the book -- e-book. 11 c-span interviews with justices, including elena kagan. you can and do the experience by watching multimedia clips of all the justices. it is available now wherever e- books are sold. >> next a memorial service for the former secretary of state. then chief justice john roberts on life in the supreme court. after that, another chance to see the review of this year's supreme court decisions. >> c-span has launched a new easy to navigate web site for politics in the 2012 presidential race, with the latest events from the campaign trail, biographies of the
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candidates, twitter feeds from candidates and reporters, and links to media partners in the early primary caucus states. visit us at c-span.org/ campaign2012. >> our interviews continue tomorrow night with representative ron paul. he discusses his previous presidential bid, his strategy for winning the nomination, his years as a doctor, service in the military, and years in congress. road to the white house, on c- span. former secretary of state [unintelligible] died earlier this month in charlottesville, virginia after a short illness. he was secretary of state for george bush in the early 90's and served in the state department under the reagan and lustration. he became president of the consulting firm founded by henry
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kissinger. at his memorial service this week, officials from the u.s. state department, including hillary clinton and henry kissinger, honored his life and work. >> i am honored to speak on behalf of the rank and file of the state department foreign service, and particularly those who had the great privilege of serving under secretary eagle berger. i worked with him from 1989 through 1993. i came to fill part of his family. still, i always called him mr., where as he had multiple names for me. early on, my name was fully farley, as in "whatever your
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name is, get in here." i figured out his was the ferocious part of a deeply kind and good hearted man with an astonishing sense of humor that would not quit under almost any conceivable circumstance. those were momentous times in american foreign policy. i cannot recall a single day when he did not have us in stitches. the work was hard. he made it fun. it was serious, but he never took himself seriously. working for him was pure joy. there was nothing we would not do for him. he was funny to the point of complete recklessness. in the car, he and his driver were like construction workers, routinely obliterating the bounds of political correctness. swearing in ceremonies were veritable roasts. and he was sending a man to
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caracas, he recalled marathon poker sessions on the way back from an assembly, and claimed the commission to be ambassador of venezuela was at stake when they reached the last hand. he could take as well as he gave. we were in a war zone once, i think in panama. soldiers want us to keep our heads down. i said, "i will just walk behind the secretary." too late, was his reply. his quick wit was legendary. once in august he told me to accompany him to the white house to discuss a foreign-policy speech to help the president with his reelection. deeply troubled, i gathered up my courage in the car, and finally said to him, "i am not sure i can do this since i am not sure i am going to vote for
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him." he almost tore my head off. "i do not know i am going to vote for him either. shut up and do your f-ing job." four months later, he was elevated to the position of secretary of state. this was a surprise swearing in ceremony. he was lured to the nsc for a meeting with a general while the family was assembled in the oval office. he froze half with through the door when he saw standing together the president of the united states, justice scalia, and his wife, holding a bible. the president said, "we decided to finally meet you legal." without missing a beat, he said, "i thought we were already married." [laughter]
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we learned from his other unique traits as well. one was his surprising honesty. although he was extremely confident, he did not need or seek kudos or the limelight. it is no accident he never wrote a memoir. he was incredibly thick skinned. criticism he was willing to give critics their due and to admit mistakes. he simply would not let the media or what he called the armchair generals and strategist deflect them from doing his job or to disturb his peace of mind. his other trade was his toughness, purging capacity to absorber pain without complaint. i spoke the other day with the last foreign minister of
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yugoslavia who knew him for decades. he told me that his bluntness could be jarring and was set of variants with normal diplomatic practice, but it was not presented because of his integrity and his great intellect. how did he get away with it? it had a lot to do with his willingness to turn the candor on himself and it meant what he did not know, admit the weaknesses of his position. he was extremely courteous and respectful of this interlocutors. he put himself in their shoes. he invariably identified common ground or a way forward that supported our goals and lets the other guy feeling like he got his way, too. far from being a typical diplomat, what made him a special you need was his ability to speak to diplomacy in the language of the american people.
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he loved to make fun of the state department where morale was always said to be sinking and the foreign service for what he called their navel-gazing tendencies. but his exasperation was rooted in reverence for both institutions and his cloth the conception of what a mess -- and if so was supposed to be. he taught all of us -- of what an fso was supposed to be. no matter the risk to promotion, a silent, and career -- the willingness to support their decisions and to serve the men country without condition or complaint. none of us can claim to meet that standard. but he did. and his example will ennoble the foreign service for
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generations to come. center tells the story of how he had passed by her desk and he was unusually stressed out. he went back into his office and buzz her on the intercom and is said, sandra, did i tell you today that i love you? and she said, no he said, i love you sandra. and she said, we love you. y0 >> it is a great honor, privilege, an act of love for me to celebrate with you the
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life of larry eagleburger and his enrichment of our own lives. president george herbert walker bush has asked me to read his message tulare's family and all of his friends. larry eagleburger was one of the most respected diplomats are foreign service ever produced and i will always be grateful for his wise no-nonsense council during the time of historic change in our world. during one of the tense moments in the gulf war, when saddam hussein began attacking israel with scud missiles, we sent larry to israel to preserve our coalition. it was an enormously complex and sensitive task. and his performance was nothing short of heroic. larry was the real deal, a tireless patriots, principled to the core, selflessly devoted to
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america and his duty. he was my good wonderful friend and i will miss him very much. to larry's family who loved him most of all, barbara and i send our most sincere condolences. i know firsthand that president bush had a very special place in his heart for larry, very much like the rest of us. there will be many stories today about larry. he did many great things, one of which president bush has just described. above and beyond those historic accomplishments, for me, i believe that larry, in his own inevitable growth she way -- in imitable grouchy way,
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flew he was comprehensively intellectual and deeply patriotic. he was irascible to know wheno t warm and affable. he had a wicked and irreverent sense of humor, but without a fight. -- but without bite. and a truer friend one could not have. larry and i had a special, perhaps unique, relationship. it was at heart based on the fact that we both had served in yugoslavia and we both served
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croatia appeared we've botcroat. we both met -- he brought larry back to help some. -- to help him. larry and i were in dili, frequently hourly, contact making that unusual relationship a successful operation. when we left office -- excuse me, during 1974, when henry undertook his shuttle diplomacy to the middle east, president nixon wanted daily reports of henry's troubles and meetings.
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secured communications at that time between washington and the middle east were insignificant to nonexistent. so larry and i used to discuss the daily activities in serve serbo-croatian. but even a native u.s. law would have comprehended it, but it was a -- that even a native yugoslav would have comprehended it, but it was a daily affair. [laughter] when president bush organized his own administration in 1988, lo and behold, jim baker asked larry to be his deputy in state. so we picked up where we had left off at the end of the ford administration for four more years of daily exchanges,
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>> my friends, larry's friends, i would remark on our admiration, which i am sure is shared any particular way by everyone here. madam secretary, i am happy we're here. mr. secretary, i am glad you are. henry kissinger once said -- and jim baker has prospered in the similarity of our names. [laughter] but i am hard put to give you an
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insight into my admiration for larry eagleburger. i can tell you that he was a distinguished public servant, as he was, that he had iniki understanding of the important -- had a key to understanding of the importance of the service and the diplomatic corps, which he did. i can tell you as well that he was genuine. by that, i mean you exactly who was, whether the secretary of state, as a trusted advisor, or private citizen, he was comfortable with that. he was happy in his own skin i also recall -- his own skin. i also recall that he traveled well. i traveled with him on occasion.
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he stood erect and upright. he looked deferentially to either side. and marched down the aisle. he carried the grander of his position and the dignity of his office. mostly, he carried the bearing of a great man. he traveled alone, of course. he traveled with some of my colleagues here. he often remarked that he was pleased to speak for the president in a foreign land. i always suspected what he meant was that he spoke for the president, but mostly, everyone understood that he spoke for
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it is perhaps the only war, the only conflict the united states ever had that made a profit. [laughter] in his own way, he is proud and we were proud. i had the opportunity and the pleasure of working with larry on many occasions. as a state department distinguished official, as secretary of state, when i was majority leader of the senate, i called upon him for advice and insight. and you could trust him absolutely, free of partisan taint, to give me his views.
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>> it is mine curtilage to read "high-flying" by john gillespie, jr. sunward, i climbed enjoined the tumbling mirth of sun split clouds and done a hundred things you have not dreamed of, wheeled and sword and a strong high on the sunlit silence. i chased the shadow and flung my eager craft, the long delirious burning blue. whenever a lark or even eagle flew.
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♪ >> scott, andrew, and jason, other members of the eagleburger family, distinguished guests, ladies and gentlemen, some folks who come to washington are legends in their own mind, but not larry eagleburger. [laughter] he came to the capital filled with more than hopes for fame and glory. he had a higher purpose. that purpose was to serve his
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country. how long the way, he did such a wonderful job that he became a legend in the mind of everyone who knew him. this son of a wisconsin doctor and his schoolteacher wife, this onetime u.s. army lt. became quite simply a superb american diplomat. when he was -- when it was first suggested to me that he would be the perfect deputy, i had some serious reservations. after all, he was a walking medical miracle who relied on the assistance of cannees. [laughter] a plume of citrus smoke seem to follow him wherever he went. -- a plume of cigarette smoke seemed to follow him everywhere he went. of course, history was against him. only one other foreign service
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officer had risen to deputy secretary of state. larry came highly recommended for having in mind filled with institutional knowledge and the briefcase of good ideas. he knew how to anticipate problems and how to solve them before they happened. he appreciated the bureaucratic dirty work that other people found a way to avoid and nobody ever accused him of having his own agenda. even richard nixon spoke admiringly of larry eagleburger, telling me very proudly that larry was utterly loyal, will not have his own agenda, and was as smart as an outhouse rat. [laughter] that latter phrase was high praise [laughter] from] -- high praise from nixon. [laughter] so i made one of the wisest
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personnel decisions i have ever made. i hired him. i soon learned that everything i learned about larry was true. he was one of the kind who drove a red corvette and who smoke in no smoking buildings. all the while, he used that in hiller of his to counter the effects of -- he used that in his to counter the effects of the smoke. he was absolutely fearless when it came to accepting difficult jobs. deputies and cabinet members get all the work and none of the credit. as my no. 2, larry was the sheriff who had the day-to-day responsibility of making sure that things ran smoothly. blood pressures rose in the offices of ambassadors and other state department officials when the word came in that
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eagleburger was on his way. and even more so when they heard that the eagle has landed. [laughter] but larry was even more than that. he was an astute diplomat who always rose to the occasion. when we needed someone to represent the state department during discussions with chinese officials in the aftermath of tenements where -- of tienemen square, larry was your man. when we needed somebody to go to panama after the u.s. invasion in 1989, larry eagleburger was the man. and when we need is someone to persuade prime minister shamir not to return fire in iraq during desert storm, larry eagleburger was the man. and larry did it all with that
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wry sense of ironic humor that never waned, even during the most trying moments. when he was attempting to convince shamir not to retaliate against iraq, then action that could have destroyed our international coalition against saddam, larry began to meet resistance. shamir was unhappy with what he perceived as a linkage between u.s. assistance and an israeli promise not to fight back. as expected, larry came with a solution unique by washington standards. he took the fall. and the told shamir that this was his idea, not his higher- ups'. his cable timmy said, if my solution does not meet -- his cable to me said, if my solution does not meet with your approval and fired, i will need an airplane to come back. [laughter]
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as a result, larry kept the powder dry. i was fortunate to have a first- rate deputy while here in washington, whether at the white house, at treasury, or at stake. of all of them, larry eagleburger stands out. so i can imagine a scene when larry arrives at the pearly gates. st. peter was there. after greeting larry, he announced to the multitudes in heavy in a booming voice that the eagle has landed. larry, it was a privilege to be your friend and your colleague. we miss you. we love you and honor your service to our country and we will see you on the other side.
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>> members of the eagleburger family, distinguished guests, who of his associates can ever forget larry eagleburger, in short sleeves, asthma inhaler in one hand, a cigarette in the other, cough drops in front of him, a telephone squeezed between shoulder and ear, and very loud opera music blaring from his recorder. larry was indispensable. as an associate and as a friend, a designer and executor policies, and as our conscience.
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larry lifted our spirits, and noble their perspective, and helped a succession of administrations to fulfil the americas aspirations. the only foreign service officer ever to reach of the office of secretary of state, larry incarnated the values of continuity, wisdom, loyalty, and experience of one of our country's great institutions. at the same time, the foreign service cannot overcome its suspicion secretaries of state are in so need of instruction. [laughter] because they probably could not have passed the foreign service examination. [laughter] during the
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