>> i had one hypothesis on why switzerland has a high capital requirement. i think that they have the best ratio of the size of a banking sector and i think it is a good example that they may want the capital requirements to be. it says that if i do not have money to give you in the end game, let's figure out what capital requirement i will charge you. my sense is the reason why the countries are not getting pushed to that limit is because the banking sector implicitly explores the fiscal strength of the government because they can be built up. today, it is conceivable that

there could be $250 billion. it does not seem outside the scope out -- of the u.s. balance sheet. the moment you talk about 3 billion -- a three trillion dollar sector it seems hard for them to manage. >> we have iceland and ireland. the island case as well. they did the bank debt on to the government's balance sheet. so you have fiscal problems and you have a spectrum of switzerland is closer to one. you have others. i think a relevant question in these issues is, what can you afford? what can you afford to pay? that is why those ratios of bank

assets for the three or five largest to gdp where gdp is a proxy or instructive. the question is, if you are talking about three or four big ones in the u.s., 40 or 50% of gdp is not chicken feed. not 200%. it is not like the u.k. and others. it is not a trivial number. the economy is not losing the search for attempts in banking. you have that for the u.s. as well. barclays and deutschebank taking market share from goldman sachs or jpmorgan because that would

be a bonus. the reason why this is a concern to the u.s. is the u.s. wants to have their banks in the plainfield and you could double that. switzerland has made an unusual choice out of necessity for the reason you mention which is -- [inaudible] and let's be reasonable and leave other countries to build huge banks. i am sure this was would agree with this depiction and it is simplistic on my part of that is what we have seen for ubs. the conclusion is the future will have large banks only in large countries. switzerland was -- this was a small country.

germany and the u.k. are countries that are too small to report. we have seen this disturbing abolition. like the relationship between banks and government and externalities' and implicit guarantees. the only institution that can compete on a global scale with the large economies of scale will be headquartered in the largest countries which is disturbing. switzerland has leslenestle. no longer in banking . >> in the back. >> the national champion model has been invoked.

it appears to be official policy because it is mentioned by jamie dimon and tim geithner. prodi the best analogy is in the u.s. beer from industry where we have boeing which is backed by the export import bank and the eu has airbus which is also backed by substance. why do we pick as our champion the worst run and least well- capitalized companies perhaps in the economy. this would-be like sending in the bantamweights to the heavyweight championship fight. there is hardly any

questioning. a related question is why are the biggest institutions the worst run? any thoughts on this? it seems it is taken for granted that it is in our interest to make sure we are out there are losing the most money. >> you referred to financial institutions but in general. we have five instead of four. another layer of aspirational too big to fail banks. >> would that be your narrative? >> i think, you know. there are a number of institutions in the u.s. who might to make a judgment? somehow they are run. my sense as an outsider is some are better run than others. there is a certain diversity

there. i think it is interesting but there is this mentality in banking more than in other industries. this is linked to the crucial -- [unintelligible] fulfil in national economies which makes it difficult for governments who considers it has nothing to do with their ownership structure. it is to be a big question for the future whether in the you, we will build a truly integrated banking market. there have been some steps in the direction. we have a global economic

integration in manufacturing and services. to me that is one big question for the future and the crisis has made this question less than before 2007. before 2007 there was this general mood of deregulation which made it credible that we would have a global financial system. it is integrated at global level and much as the case now. >> a question about basel. someone commented in one of his recent papers that he thought the imposition of minimum

standards of harmonization and regulatory practices have helped make the large banking institutions more like. basically reducing the diversity of the banking system and therefore perhaps made it more vulnerable to systemic shocks. any comments on that? >> i have seen some of these papers contrasting differences between european and u.s. institutions because we had a leverage requirements and they did not. there was another -- i have been more aware how the differences have motivated bigger.

-- behavior. basel was slightly better -- basel iii is inadequate. i do not think there will be quite -- the principles are sort of better. are we progressing, i suppose that it is not something that generates great enthusiasm. in contrast i think all ling's considered, dodd-frank was -- i give them better marks than i expected when the process started. i thought it would be more watered-down. after the crisis i thought basel iii would be stronger and this would be the time when it would

be tougher on the banks. it has worked out a bit in reverse for me. >> i want to ask a related question to your is which would circle back to, when you cited almost throwing up his hands over the cross - - bordered resolution. there was the toughest issues that members of the project wrestled with. so if we are moving toward these national champions, that are looking more alike, even though they retain differences that you mentioned that could be

analyzed, with there be any hope, does that make this cross border resolution authority more difficult if we are really talking about a limited number in the world. >> the financial markets have been degraded over the past decades. banks have internationallized and we do not know if the crisis will result in the reversal of this international's asian and integration or whether it will continue. we frankly do not know. i'm slightly less -negative on basel 3. maybe that is a difference of perspective. i think we can agree that requirements are not going to prevent international banks from

failing in some cases and therefore the issue you mentioned which is the question of cross-border banks. it is one of the issues which has not been resolved. policymakers are talking as if they do not have a clue. they experience has -- this is difficult to resolve. in the geographical space which is poorly integrated at a political and legal level, we have not really practiced. there is a discussion on going but at this point, the resolution remains a national matter. so my sense, this is a research

project. the commission gives perhaps an indication of one possible way forward. not the traditional classicagla- steagal separation. they're making a distinction between tradeable versus non- tribal financial services. they are mostly tradeable on wholesale and investment. it is a different way of looking at it. and here it is not about saying one type of guarantee. i personally do not believe that.

but it is a different framework. the commission was right to say it let us regulate financial services in the u.k. but that means retail. we have to leave wholesaled to an international discussion. the question is what form does this take and we're at the beginning of that decision. >> i think the facts we have not gone anywhere in cross border resolution is troubling. i even thought about saying, the default regime ought to be the fans. everyone will have to -- it will have to be capitalized and that will be expensive to the industry but since you're not getting anywhere on cross border, this is a solution. insurers there is accidents

there to pay the liabilities. it is better than chaos. and so if we do not get some sharing agreements soon, there is an incentive to do that. let's go to bring fans. it is something we know what to do -- how to do and it is better than nothing. maybe that will motivate discussion about trying to get cross border moving. >> thank you very much. thanks for inviting me to moderate this discussion altria thank you for paying such close attention at the end of the day. thank you. [applause] >> we have a 15 minutes chance, you may relax. i am not planning to use 15 or 5 minutes. just one or two. thank you for attending and

thanks to stern for sponsoring the event. we had a lot of different positions represented during the day. there has been rich discussion of some pressing issues. very important issues. it is clear that there are plenty -- there is much to do. the challenges are great. i think we must figure on paying the price of freedom which is eternal vigilance and keep them to their task. we wish them a lot of luck to maintain their resolve. thank you again. godspeed. [applause]

>> you can see this conference at c-span.org and some on our

overnight programming on c-span 2. president obama is meeting with ms. mcconnell on reducing the national debt and the debt ceiling. this is after they met with harry reid for 30 minutes. he said everyone in the room leaves a significant deal remains possible. august 2 is the deadline to upset the -- raise the debt ceiling. former illinois gov. rod blagojevich was found guilty today on 17 corruption related charges including his attempt to sell an appointment to president obama is open senate seat. the jury found him not guilty on one count of the attempted extortion of rahm emanuel and that was president obama's chief of staff and now a chicago

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support -- supreme court decision. we will hear about the make up and how the justices ruled on high-profile court cases. held at the annual judicial conference, this is two hours. >> good morning once again to everybody. i am happy to welcome all of you to the supreme court review. our plan is one that if you have been here before you are familiar with. we propose that during the morning to take a look at some of the significant decisions of the most recent turmoil of the u.s. supreme court. i hope you will realize that we're being very selective in our coverage. it is not possible to be comprehensive. not even all the important cases will necessarily be talked about

but we hope we are picking enough of them to give you a sense of what the court has been up to this year. we will try to bring the train in on time. many of you will be checking out are getting on the road so we will conclude comfortably by noon today. we have a very distinguished panel. i am delighted to have with us heather gurkin and michael mcconnell, thehe is a former 11h circuit court judge. and served in that capacity before he returned to the academy. also former law clerk to justice brennan. niels hageeil siegal is a member

family in a way because he served as a law clerk to judge wilkinson before he went on to clerk for justice ginsburg at the supreme court. finally we have adrian vermeil who is a former law clerk, having clerked for david santell and justice kha[unintelligible] at the supreme court. you could not have been more hospitable or gracious. let me take a few minutes as we begin our discussion to try to set the context of the court. it is completing as of this weekend its sixth year. and it is interesting. i was thinking about the time that passed from the year that

role warren became chief justice and nine years later when the warren court finally came of age. it was in the early to the mid 1960's when the court handed down many of its landmark decisions. it is interesting also to note about the same time passed between the year that william rehnquist became chief justice in 1986 and the time in which the rehnquist court came of age. roughly around 1995. the benchmark that year was the u.s. v. lopez. the court seemed to be coming out swinging on areas like federalism and church and state and others.

the might be coincidental but it leads me to wonder if we're two- thirds of the way through another nine year span in which the roberts corp. will merge fully from its cocoon and be something we could talk about as a historical period on the court. i took a look at the book from the gesell institute about how 6-year-olds behave. it is a lovely creature. dynamic and enthusiastic but one whose life is not without complications. his biggest problem may be his nature. he may be beautiful and bubbly one-minute but difficult and quarrelsome the next. i do not know of that fairly characterizes the rubber accord

but we will find out during the morning. during the several terms in which the court has been -- the first term i will not mention. by the 2006 and 2007 term, you will see the assertion of more conservatism. the result of justice alito having replaced justice o'connor. the seattle and louisville school cases, areas like religion -- the did not have standing to challenge the white house initiative. those are samplings that came out that began to give one a sense of what the court might be like. the next year, you could see what the press likes to call and in ideological split in the court. some of the terms, the biggest

case, a case involving capital punishment for those who rape children. conservatives -- that was d.c. v. hiller. the court did to the other way. in kennedy v. louisiana. 2008 and 2009 term. that was an interesting -- that is how commentators like to put labels on the court. there were talking about incrementalism or minimalism. the court was going in a conservative direction but step by step. they resolve that case on statutory grounds. another example would be the boston case involving free clearance under section 2 of the

voting rights act. there is the 15th amendment question. the pattern was emerging that that is the term before the prison term. the conventional wisdom had by that point become the press would have said there is a liberal and conservative blog. that brings us to the present time. the term we are looking at during the morning. it seems that, let me put several generalizations on the table and we will see whether they stand up or not.

i invite my colleagues to agree or disagree. this is the conservative trend in the court. the importance of alito replacing o'connor, one political scientist did a study of the 44 justices who settled since 1937. by that survey of the six most conservative justices, four are serving on the present court. the report -- if there is a shift, clearly not in one way only. there have been some results like a better way. the case involving detainees and i mentioned kennedy v. louisiana. there is more of a correlation than there used to be between a justice on the court and the pointing president of that court. there was a time when he was struck by the idiosyncratic

behavior of the justices. moktadin part, that is the fruif that debate that when on going back to the reagan administration when the justice department had more of an agenda of the kind people that would like to say. thirdly, judicial activism is not dead. whatever it means, we have a general sense of it. the court was activist in the liberal direction to the extent uc activism now. it seems to be on the other

wing. judicial activism is still with us. if the term that ended in 2009 was a term of incrementalism or minimalism, it seems to me that might have passed. it is the role of the chief justice from whom we heard this morning it seems to me that history will record it is called dave roberts court. that is an open historical question. is it appropriate to call the court of the chief justice who leads a but certainly the figures are not in for this term. if there is such a thing, koepp

-- kennedy is a more conservative swing vote. the court emerged as the moral and tactical leader. his departure leaves the question, will someone stepped in to fill that void. we have justice sotomayor' and kagan's the recent additions. will they pick up that mantle of leadership? mention was made in the discussion between the chief justice and judge wilkinson of the pace of oral argument. it is the case that is faster and quicker than it was 20 or 25 years ago.

it is notable that justice justice kagand appear not to be sitting back as freshmen justices. they're prepared to leap in. justice sotomayor's strikes me as active as she was in the california prison overcrowding case. the other side of the court, where familiar with the roles played by justice scalia and justice thomas. thomas has become one of the most intriguing figures on the court. he seems willing to consider almost any precedent. he is willing to take a fresh look at it. we know about justice scalia's role as well. just as alito is emerging as one of the more interesting figures to look at on the court. there is a tendency to lump him in with the chief justice. there is a high correlation of agreement in their voting patterns but there are

interesting cases. i am thinking of the first amendment and the case involving snyder v. phelps, where justice alito was the dissenter. recalling a case from the previous term involving videos depicting animal cruelty, once again, he was the lone dissenter. he is coming to have his own voice on the court. final comment is to lay on the table the question often talked about in the press and commentators. is the roberts court a pro -business core? these are cases the business community cares about. that cry was heightened by citizens united last year when it was argued that one reading

of that case was it is an invitation to corporations to pour money into politics. business interests might have been heartened. the must've liked the wal-mart decision on which class actions become more difficult. the pre-emption case is one at a commercial speech -- the commercial speech cases another. it takes a wholesale beer to be pro-business but the other side of the picture has to be considered cases like the employment discrimination cases where the court appears to have

been favorable to employees challenging discrimination. saying that an oral complete would do. these were favorable to employees. by no means did all those fall in the favor of those businesses that seem to favor federal pre- emption of state law is the arizona immigration case. and is clearly an example that and there are others. finally a case that the chief justice wrote involving -- including corporations do not have a personal right of privacy. i think we have a lot to talk about this morning. we have some very good people appear who are trying to go with

it. i might add we had thought about adding to our agenda this morning some discussion of the health care litigation which is working its way through several circuits including the fourth. we have decided we will defer that and try not to take them on today. maybe the next panel that meets. we had left that off the table. there was a lot to talk about. with this general thoughts to set the stage, we are going to proceed through several major areas. we're not trying to do everything. we hope that we do have to say will be of interest to you. we want to start looking at some administrative law cases and also perhaps privacy and state secret cases that came down this term. would you like to pick up in that area? >> thank you.

the want to thank our fourth circuit hosts for giving me -- i want to thank our fourth circuit hosts. i think the administrative law part of the docket is always the most thrilling part of the supreme court term. maybe some of you may not initially see it that way but i will try to win you over. what i will do is to identify some administrative law principles that emerged from the term as winners. some that emerged as losers and one important one. that is under a bit of a cloud. let's start with the winners. the major winner was the chevron doctrine. it expanded its empire even further. the remorseless expansion continues and it takes in the treasury department and taxing statutes. when -- thye chief justice wrote

and how that chevron supplies the governing standard for review of treasury department rules. the opinion displaced an old precedent beloved by tax lawyers calleand the chief justice wrotn strong and striking terms of the factors set out were irrelevant. he said whether the agency has been consistent or inconsistent in its interpretation is not relevant for chevron purposes. the antiquity of the regulation and whether it was enacted contemporaneously with the statute are neither here nor there. it is immaterial whether the regulation was prompted by litigation or not. and immaterial whether congress. delegation of authority was general opposite -- specific. this was a robust version of chevron with large muscles and i think the chief justice's

approach will have broader in -- implications for the future. what is striking is the rationale the chief justice gave. he said the main one was the intrinsic value of uniformity and federal standards of judicial review. he also mentioned -- there is something missing here. something notably absent. this is the pool accountability rationale. the presidential administration would enhance the democratic character of regulation through the electoral connection. i think it makes perfect sense to downplay the accountability rationale for chevron if the court is interested in increasing the informative

federal standards of judicial review of the agency action. the reason that makes perfect sense is lots of the court cases and cases in the circuits involved regulations promulgated by independent administrative agencies like the federal reserve and the fcc, both of which were before the court this term. the accountability rationale would have a hard time covering this case is because at least in theory, the accountability to the president of independent agencies is attenuated. so the deliberate omission of the accountability rationale is -- suggests the court is serious about tidying up judicial review of agency action under a unitary, powerful chevron from work. another conspicuous winner --

[unintelligible] the court deferred to the interpretation of agency regulations by the agency and strongly underscored its commitment to doing so. at least for the regulation does not simply parrot the language of the underlying statute. mostof the terms' ambitious theoretical concurrences was issued by a justice scalia. he said he had come to doubt whether or difference is even constitutional. for us administered of lawyers, this is a big deal. this is part of the ordinary tool kit of administrative law and it is unconstitutional, that would be big is. justice scalia said it seems contrary to fundamental

principles of separation of powers to permit the person, the agency, who promulgates a lot to interpret it as well. he derives that rationale from an article by my friend and colleague. all this puts me in an awkward position. having clerk forcefully and being john's friend and colleague. i find the argument unconvincing. i want to tell you why. it sweeps too broadly. it sweeps much more broadly than the limited context of hours away. most agencies promulgate and interpret rules. if the fusion of lawmaking and law interpreting authority is constitutionally suspect, the great bulk of the administrative state is suspect. its hallmark, the hallmark of the minister of state is this combination of functions and administrative agencies. if that is so, justice scalia should be talking about some

sort of large-scale revival of the nahyan delegation doctrine and at minimum invoking the argument to overturn that is like using a hydrogen bomb to kill a mouse or something like that. it is far too consequential. let me be pragmatic for a second. if we adopted justice scalia's view, the main consequence i predict, the main consequence would be to encourage substitution at the margin from regulation to simple case by case adjudication under ambiguous statutes. the agency would have every incentive to switch. agencye worried about discretion, that outcome is possibly worse than the regime where agencies pasturage -- regulations and get our difference for them. in any event, no other joint

justice natalee's cajustice sc'- concurrence. let me mention a clear loser. beside national muffler . the turn tenery console.- the an agency -- the tenery principle. several decisions from the term were very relaxed about the prospect of post-top russell mobilizations -- post-talk rationalizations.

i think this converts the principal from something like the role of resumption to an ad hoc consideration or the agency has taken a deliberate position. it may come in a letter. for now, that logic is confined to the auer context -- the approach is confined to the auer context. would it be possible to adopt the same approach on straightforward judicial review of agency action situations? we should watch to see whether it spreads to other domains here

in this may be a real innovation in administrative law from the roberts court. finally, a crucial administration law doctrine that has been a drizzling cloud after this past term is the me doctrine that tells us when to apply chevron in the first place and has been a source of major controversies over the past 10 years in administrative law. we have had some good moments in the past term, but also some bad moments. a good moment was that mayo did take it as a working framework to see if chevron applies. on the other hand, there were least 3, 4, or five bad ones. the intention with the emphasis on uniformity in federal review of agency action, a major

rationale for mead was to taylor deference to variety, which is to have flexible applications to legal interpretations. it emphasized the need for uniformity of judicial standards of review. i think mead starts out with a strike against it. all this broke out in the open at the oral argument in chase bank. mead had seemed to say that an informal procedure would not get their friends or my connected deference or was at best suspect. what agencies needed to do was informed there interpretations.

several justices at the oral arguments said we cannot do both things. we can both do mead and auer deference. we had a two unanimous votes to that effect. what happens to mead in that case? there is not one word about mead in the opinion. i think that is bad for mead. if people are not talking about you or at least sometimes not talking about you, that is mulling a good thing. a second -- that is not a good thing. a second ominous point is that

maybe mead is not consistent, but we are not sure that we got it right in mead any way. i am not sure who "we" is, but if it includes justice kagan, i could signal a shift. a poll theote to position, sotomayor does not think it is a necessary to discuss mead, i think there is still in question whether it will still be the law five years from now. it is under a cloud. >> i just wanted to jump in very quick way. all of these types of difference and so forth may strike a lot

people in the audience as thrilling. i think the technical term for this is a snooze. i think they are very important because it is argument over these questions of difference in which the very idea of separation of powers and the rule of law are worked out in the context of the administrative state. i would like to at least maybe cautioned against assuming that justice scalia's new campaign against auer differences over just because he lost this particular term. justice scalia is a very smart guy and he is very persistent. i remember it when he first introduced his campaign against the use of legislative history in ordinary and statutory interpretation. it seemed bizarre and i do not

think he had any other supporters at the beginning. i would not be surprised if his critique of our deference -- of auer de france will gain adherents over time. i the thing that it has a very important grain -- i do think that it has a very important grain of truth to it. when a single body does both promulgate a lot and interpret the law, the rule of law is over. the separation between law interpretation and lock promulgation is absolutely essential to the law having some independent integrity. would makea's view things worse because it would induce agencies to engage in more activity on a case-by-case

adjudication. that may be so, but i think there are good reasons why, over the past 50 years, agencies have not found case-by-case adjudication to be an effective way of asserting power. i think a return to separation between rulemaking on one hand and adjudication on the other is something that we should applaud ending courage -- we should applaud. scully is probably not right that it is unconstitutional, but -- scalia is probably not right that it is unconstitutional, but that it does tread on some constitutional powers may be right. >> if you found the former generation -- reading john

locke and "the social compact" and the like, i think they would have brought up the adjudication principle. also the revival of federalism and the rehnquist court. in the 1980's, he was the lonely voice in the wilderness. he and others fanned federalism back into effect as a constitutional part of the american edifice. what is the prospect we will see any resurgence of the non- delegation doctrine? it seems to have been dead and buried for such a long time. i do not sense any interest in the court to revisit that issue. do you think that the sooner the issue you're talking about the so -- you're talking about this morning might force that? >> we have long and complex views on this. first, i disagree that the non delegation doctrine has original list foundations. if you look at the legislation passed in the first congress, it included five or six delegations

that, today, we would think would blank check delegations to the president to do various things. in my view, the non-delegation doctrine is a late-19th century creation by lawyers anxious about the nascent the administrative state. that experiment lasted until the 1930's and then basically collapsed. it shows no signs of revival. the non-delegation doctor leads a ghostly existence with people talking about it all the time, but it does not manage to by anybody. even justice scalia has written one of the most sweeping modern opinions upholding the delegation -- a case called

white men -- and he says he sees no prospect -- called equipmenw hitman -- and he says he sees no prospect for it. if mike and i have a disagreement, it may be a productive one. i think the last -- the lessons of the last 50 years is that they're sensitive to changing incentives for substitution between rulemaking and adjudication. in the 1970's, when the court, in various decisions, increased the benefits of rule making, then agencies engaged in more rulemaking. i suspect that, if the court somehow got out -- got rid auer difference, then agencies would participate in more adjudication. >> thank you. i want to move now to the

first amendment cases. it was a robust part of the docket. heather and mike respectively will take up some of the major cases. i have asked heather to think about the public finance case out of arizona. and also, heather will have something to say about snyder vs phelps, which was one of the headline grabbers of the term. once we have talked about those cases a bit, we will move on to mike and talk about some of the other important first amendment cases on the docket. heather, may i ask you to drop in and start that out? " sure. how want to thank you for inviting me. -- >> sure. i want to thank you for inviting me.

if you were thrilled with adrian's then minister of law decisions, fasten your seat belt current the first amendment decisions are the blockbusters this term. macomish is one of those that we are waiting for. this is a case involving the challenge to arizonas public finance system. if this challenge succeeds, a number of state financing systems may fall with it. if the court rights broglie, financing systems across -- rightwrites broadly, finance systems across the country are in jeopardy. a publicly financed candidate is eligible to receive additional funds in arizona if his opposition outspends him. but the term "opposition," that

is not just the candidate he is running against, but all the independent groups who are running ads on his behalf. this law was challenged on first amendment grounds. election law is the sex, drugs, and rock-and-roll of the first amendment. the one that the district court, but lost that the ninth circuit. it does not limit any expenditures. therefore, there is only in limited burden competition for first amendment rights and they found that the statute was constitutional. a lot of the briefing in the case was devoted to one decision. pulled for political junkies, you will know that this is the millionaires amendment case. mccain-feingold had a position

that had a limit when opponents were so financing their election. if anything, this is an easier case than davis. the millionaires amendment only allowed the publicly financed candidate to raise more money. in the arizona scheme, the publicly-financed candidates automatically gets the most funds. they have the most compelling facts. one of the candidates in the case was running against three publicly financed candidates. so every time he raised $10,000, $30,000 appeared on the other side to oppose him. in any -- in many ways, the two sides have been utterly unable to find common ground. that is because they begin with a different premises. one side sees substantial

expressive dimension to both contributions and expenditures and the other side simply does not. it is too crude to boil down the debate to slogans like "money is speech" or "money is money." nevertheless, for the past 10 years, the only middle ground that has been found has been to stick buckley vs. valejo. the problem is this. no one admirers buckley. very few people think it was even close to right. so to allow the court to cobble together a majority, it has not helped build a common intellectual framework. in paris and macomish -- in davis and macomish, in a

petitioner's summary, they begin with a great anecdote when janet napolitano was running for governor. she pulled her upon the side and she thanked him for his fund- raising efforts. he had it fundraiser that raised $750,000. she got $750,000 in response. she said, i am quite certain that i am the only democratic governor in the country that george bush held a fund-raiser for. just as kagan said, it seemed like the system promotes more speech all-around. that is a core problem in campaign finance.

the justices cannot agree on the basic premise of the doctrine, no balancing test, no choice about the level of scrutiny that will bring agreement. whatever the results in this case, the doctrine will remain highly unstable going forward. this is not doctrine moving toward consensus, but a death match between two competing points of view. i am tempted to quote harry potter -- neither can live more either survive. some of you remember there are other -- there is another finance case called citizens united. the press has an entirely missed the significance of that case. in the arizonan briefing, it is confirmed. the press had told us that citizens united give corporations the right to speak. i will tell you that that is

nonsense. corporations enjoyed robust speech rights before citizens united. indeed, they did not open the floodgates with citizens united. they open with a few years before that receive no press attention current at most, citizens united expanded the rights of corporations to be more specific about their independent expenditure. to put it in crude terms and by way of example, before citizens united, corporations could run an ad that said senator x kicks puppies, call him and tell them not to kick puppies. now they can run an ad that says senator x kicks puppies. do not vote for him. that fact has been utterly ignored by the press.

as you all know, when congress regulates under the first amendment, it has to have a good reason for doing so. the reason that congress has law invoked is corruption. quid pro quo corruption is when i give you money and you give me a vote. the donors are calling the tune. indeed, at times, the mere appearance of undue influence and access was an appropriate route for regulation and that approach gave congress a great deal of room to regulate. citizens united seems to have cut back dramatically on that approach. it has returned us to the defendant -- the definition of corruption.

we're back to quid pro quo corruption. while the press mourns the court holding when it overruled lawson, the one campaign finance case ever in the to the equality rationale, ingratiation and access are not corruption. the broad and nebulous view of corruption endorsed by the liberals allowed congress to regulate problem without ever mentioning the word "equality." that is what was at stake in citizens united. while the press has missed this point, the courts have not been lower courts have begun to dismantle portions of the campaign finance system on these grounds. advocates have not missed the lessons of mukasey there. macomis -- and lessons of along either.

macomish is not ignoring it. given that quid pro quo corruption is the only run for regulation, why do we need more? why arizona even needs a public finance system? publicly financed candidates, they observe, are no less susceptible to trading of four gym bags full of cash them privately funded candidates. this is why campaign finances so fine. they did have a case involving gym bags full of cash in arizona. what is the justification of public finance other than the now illicit equality rationale? the court does not need to answer that question. but how it answers that question, whether it's does it inmacomish or when it does it more directly in the future, it is not just public finance, but finance more generally. this may not be the case that

resolved the question but it is likely to give us a hint as to which the direction will eventually take us. the second case i have is also one of the blockbuster cases of the term. it is snyder vs phelps. if there is every case to pull at the justices heart strings, it was snyder. mathews letter was killed while serving in iraq. at the funeral, a man named fred phelps and the rest of this was borrow baptist church staged tickets involving a variety of despicable signs, homophobic slurs, silver in the death of american soldiers, anti-catholic attacks. was borrowed church routinely boycott the -- routinely pickets of the funerals of soldiers because they believe that the american college of homosexually led directly to 9/11 and the casualties of the iraq war. picking funerals of private individuals have garnered was borrow -- from midwest borrow --

garnered westborough more attention than it deserves. the district court let the compensatory decision stand. justice alito's vigorous dissent urged the justices to make an assumption -- to make an exception where private individuals are subject to personal attacks during a funeral or during other occasions that he turned intense emotional sensitivity. but the chief justice resisted the urge to carve out an exception can it reads like -- an exception. it reads like a dramatic first

amendment case. the fact that all of this occurred at a private funeral did not make the speech any less public in nature in the view of the court. the picket was peaceful and in full accordance with existing time, place, and manner restrictions. it was protected by the first amendment, not withstanding the despicable purpose. despite the straightforwardness of the opinion, there are signs that this was not the easiest of cases for the majority. while maintaining a steady the neutrality, the court notices that others may well find the message offensive end of an enjoyable value even in a robust marketplace. the court was very careful some of the analytic rabbit holes that it might have tumbled into had it written a broader opening. the court carefully classified

the speech as mostly dealing with issues of public concern. that avoided the naughty questions involving some of the speech directed at snyder himself. for procedural reasons, the court had the luxury of ignoring the online diatribe public by westborough, which was not an option available to the fourth circuit. it requires us to tolerate the and tolerant, to maintain a free marketplace of ideas, even for those ideas that are surely wrong. lee bollinger, a law scholar, says that the first amendment is important as much because it signals our willingness to allow despicable speech as for the rights of the speakers themselves. in his view, it is our capacity to tolerate the wrongheaded, even the intolerant that makes us who we are. snyder very much reads in keeping with that tradition.

but snyder leaves open as much as it resolved. it reads as a simple case, but it may be deceptively so. the court's assessment of the fax is that this is predominately a matter of public concern and it failed to grapple directly with the speech directed specifically at snyder himself. those things enable the court to write a clean opinion that left the side of the difficult questions about how far the first amendment is allowed to push us where we had more obviously private speech involving more of is the private arms. >> -- more obviously private harms. >> i want to thank the judges of this court and professor howard for inviting me to be here. i spent a very important year of my life in this court.

it is good to come home to find in that it fit. with the campaign finance cases, the question i have for heather is what refers to what you call these so-called illicit equality rationale. i remember the or zero argument in davis. justice scalia denounced this idea in his inimitable way. he said what if we find out that one candidate is more eloquent than the other? should we require that he speak with pebbles in his mouth? [laughter] i do not think any of us are inclined to require candidates to speak with pebbles in their mouth. is egalitarian, is this idea of not leveling the playing field making it less dramatically unequal? the concern is intuitive. those with a lot more money get to speak a lot more and drown out everyone else.

i do not think the court will anytime soon accept this rationale. but i am interested in whether you think that is what is moving the court and what is moving a lot of campaign finance legislation, and whether you think there's something to eat normally. >> may i add a separate question related to that -- something to it normatively. >> may i add a separate question related to that? i notice to the lack of deference to congressional judgment. but she did not say why the court is hesitant to defer. his reason is that, in the context of a campaign speech, the legislators who are writing the rules are players in the game and they and stand extremely well who wins and who loses from various regimes of campaign finance so-called reform. the essential problem is this. incumbents are in power. it is easy for incumbents to raise money for their reelection

campaign in appropriately small contributions from large groups of interested people. it is difficult for an unknown challenger to be able to raise the money coming even to be able to compete. so there is a persistent suspicion that the efforts to make it more difficult to raise money for campaigns is really a disguise, not for egalitarian concerns, whether they are right or wrong, but for incumbency protection. >> heather? >> in the equality verses corruption debate, i credit -- david strauss argues that the corruption concern has to be about equality for the following reason. as long as we assume that you give the money to the candidate of properly, not jim?

full of cash, what you do in a campaign science cases that they can only give a certain amount of money to help the candidate win. it is not lining his pockets. it would be appropriate if you could calibrate and find it a good thing to contribute. if that is the case, why would we possibly worry about giving money to help the candidate win? we have to say that if everyone has one vote, the do not all have the same amount of money. i think the quality rational does animate current even now, when legislators tried to pass campaign laws and they know that the quality rational is not allowed, they really fall into the trap of talking about leveling the playing field. those are the terms of signal

the real motivation behind this. all of the election is ridden with its problems. the foxes are guarding the hen house. when that happens, they are not likely to do much to help the chickens. and we are the chickens. so what should courts do when they look to the regulations passed by legislators? as long as we have the system that we do, which is a partisan system where legislators passed the law, i think the only way to look at it -- the only thing to do is to give it a hard look. no campaign finance reform ever gets passed unless it is in the interest of legislators. that is a fact. you have to hope that, vocationally, the interest of legislators align with the interest of the voters. that is always true. legislators have no interest in serving their constituents. they want to pick their constituents. whenever you have campaign

finance legislation, you have to give it a hard look to make sure that the incumbents are not serving their own interests, to make sure that one party is not using a seemingly neutral regulation to hurt the other party. these are routine problems. for that reason, i think it is a proper for congress and legislators to receive less difference than the usually do on these questions. >> i wanted to offer a few thoughts about snyder vs phelps. it is one of the most important decisions. on the merits, i think the court got it right. i felt it was instructive for me and all of us to sometimes monitor our own emotional reactions as we read supreme court opinions. in my own case, the more angry and upset i got by the facts and what the church did, the more became persuaded that the court was right, that they are speech was constitutionally protected. i do not think this was it is primarily or very much at all

about separating protesters from a father who wants to mourn the loss of his son in peace. i think the facts made clear that the church had every right to be where they were and in no way disturb the funeral. i think it was about suppressing a message altogether and i think the court was right to resist the repressive urge. i think snyder, like the steven's case that professor howard mentioned, illustrate a very interesting 8-1 split in this court where the first amendment cases and values collide with norms of committee, norms of decency, norms of respect for basic human dignity. sometimes the dignity of non humans, animals, as well. i think there is an overlapping consensus on the robber court in these kinds of first amendment cases. i do not think it makes sense any more to talk generally about what it means to be a liberal or

conservative in these kinds of first amendment cases. there's also one consistent the center. dissenter.ent with the cente it eliminates what was going on in this case, particularly in the dynamic between the roberts and the majority opinion and the dissent.scen he has identified attention in these kinds of first amendment cases between the first amendment as the guardian of our democracy and the common-law tort as the guardian of our community. there are times when these two values clash irreconcilably. in also illuminates to the extent that these two values rely on one another.

respect for the first amendment and certain norms of communities. it does not undermine or restrict them. in order for the first amendment to robustly protect speech on matters of public concern, we require a community that values first amendment values and is prepared to defend them, even when a repressive verge is difficult to control. i think the chief justice understands this in the opinion he wrote. for one thing, he enacts it. it is a very disciplined opinion. while acknowledging the suffering that met you snyder's father in door, it is nonetheless very disciplined and neutral about of the speech at issue. it is worth focusing on the last paragraph of the opinion. the chief justice wrote the very falling -- the following very movingly -- speeches powerful, move people to action,

move them to tears of both joy and sorrow, and, as it did your coming in click great pain. as a nation, we have chosen to protect even hurtful speech on public issues to ensure we do not stifle public debate. i read this as a reminder to all of us that the first amendment values at stake in this case rely upon the community who is prepared to indicate them. >> i have one response between a -- about this division between public values. this is where i felt that the chief did not answer justice alito. justice alito said that we do not have to choose between them. we can separate them. we can talk about the speech that was directed at snyder alone. why not separate them and hold

these guys liable at least for the purely private speech. i think there is an answer to that question, but roberts did not provide it. he did not say why it was necessary to figure out generally what the speech was about. i think it would have been a strong opinion had provided an answer to what i thought was a sensible lawyers point. >> i am not a first amendment specialist. before that reason, my speech protective reflexes. i am unhappy with snyder for a couple reasons. nothing either of them has to do with emotionalism or repressive verge. one reason i am unhappy is the issue of the distribution of the cost of free speech. when people like lee bollinger say that this is the price we pay for the system of free speech, it is not a price that

we pay, but the price that albert snyder pays or that that family pays. it was concentrated on one or a few people in cases like this. that distributive issue is a legitimate non-emotional ground for worrying about cases like cider, i believe. the second point -- cases like snyder, i believe. >> the second point is that they slightly miscast the objection. sliders position, rightly understood, is that you can speak on matters of public concern, but you d you have to hijack my son's funeral to do so? the church is saying that we will exploit you for publicity. and the attempt to stop that is not an attempt to stop them from speaking on matters of public concern. it is an attempt to say that you may speak on matters of public

concern, but you have to do so in a place or in a time or in a way that does not hijack someone else's private concerns. i do not think that is a repressive surge or emotional trauma. i think it is a legitimate argument that should have been more squarely drafted. >> i want to, wanted to comment on this not because i disagree with the decision, but because it is deeply controversial character needs to be recognized. we engage in this fog of free speech celebration and sometimes forget, among other things, how different the united states is from other parts of the world. any other -- in any other western country, this case would have lead to prosecution. it would have been described as a hate speech. a dutch parliamentarian was prosecuted he was acquitted, but

he was prosecuted for speech criticizing islam that was far less inflammatory than that god hates fags speech that westborough baptist church in did in this country. in canada come up -- in canada, britain, and other european countries, they would have been facing criminal liabilities. i celebrate the fact that we have not gone down that path, but i think we need to recognize that this is really an american distinctive. but also wonder how far these principles of snyder will be oppressed. i think that the majority opinion in snyder depended upon does not existat i

in fact. there are issues of public concern on one hand and targeted attacks on individuals on the other hand and to define this as falling in the first. with that cataloging all the examples, the principal ones that we see have to do with harassment on the basis of sex, race, sexual orientation, and so forth. speech of this sort, up offensive racist, misogynist, homophobic speech, has a deeply political character. it is about issues of public concern no less than the speech i hear is. but is forbidden under public accommodation law in a number of context. just in the last few weeks, the

federal government has come down on your university under the title 9 -- down on yale university under the title action for failing to take aggressive action against some sophomoric fraternity pranks yale took place at you i university that was offensive to female students. sutter nurses felt goes to great lengths -- slighter vs phelps -- snyder vs phelps goes at great lengths to use offensiveness under the legal standard of the first amendment. that is the standard being applied under harassment law. it is the standard applied at

yale. it is enforced with a great deal of ruthlessness on american campuses today. how will we resolve this attention? are the ringing principles of snyder vs phelps going to crowd out the increasing efforts to protect people against offensive speech where the offensiveness is based upon the favored categories of race, sex, religion, sexual orientation, and so forth? it is interesting that none of the opinions in this case recognizes that this is -- there is this huge domain of speech restriction based upon offensiveness that exists in this country. which principal will prevail? >> i have not read the amicus briefs. did they address this point?

>> i have not read them. >> that is a profoundly important point. you have set up very nicely for me to pass the baton to you. >> just one general remark looking at not just this term, but the last several terms, is that free speech is alive and well in the supreme court. i would say that this is the most consistently and strongly free speech protective court in american history. we see the court protecting our principles of freedom of speech, even in the face of very powerful concerns on the other side. last term, animal cruelty, this term this horrible speech in

snyder vs phelps, and as i go into some other cases as well. i will begin with the one case in this term in which the court did not protect something that is arguably freedom of speech. that is nevada commission on ethics versus kerrigan. that is the exception not typical of the term. this had to do with accusal rules for the nevada legislature. under these refusals, they legislate or is not allowed to vote. he is not even allowed to abdicate in favor or oppose legislation where he has a personal interest in the matter , in the particular facts. this was a challenge, so the facts did not really matter, but the particular facts are ones where this legislators chief

campaign manager and his shoe supporter becomes a lobbyist and now is representing a party who has an interest in this litigation. the court holds in an opinion by justice scalia, joined by all but kennedy and a leto -- alito -- it holds the statute is legal under the present amendment. it is that voting and advocacy is first amendment protected and thus the nevada statute violates freedom of speech. the court said no. essentially it said no because voting is not speech. and the courts as the key point here -- they legislate toward's about is the commitment of his

proportion share of the legislature's power to the passage or defeat of a particular proposal. so it is really not speech. but this is, when the legislature votes, and exercise of power. it is governmental authority delegated to that person by his constituents. there is a certain amount of sense to that. that may be right. but kennedy and toledo -- and alito have concurrences that are interesting and thought- provoking. it is how close the idea of voting is to expression. justice alito said that if we held a straw poll, nobody would the but ordinary people casting a vote in a straw poll is the way the express their opinion on a matter. he says so also with legislators.

i am very interested in the application of constitutional history to constitutional cases. i cannot help but note that the speech and debate clause of the united states constitution clearly applies to voting. the speech or debate clause -- did our farmers miss something that says now that voting is not speak at all? it is also interesting that the freedom of speech, the phrase "the freedom of speech," in the pre-independence british constitution meant -- the only thing it meant was the right of members of parliament to vote and advocate for particular measures in parliament. that is what freedom of speech was all about. it is interesting that the very thing that was the core of the freedom of speech under british constitutionalism is not

freedom of speech at all. and yet there is also a longstanding tradition of accusal rules. -- recusal rules. it seems almost inconceivable that they would be unconstitutional. alito and kennedy offered different ways of looking at. alito said it is speech but these are proper restrictions on speech. we would then enter into a conversation about how narrowly tailored the rules are, and so forth, and not class them as not speech. justice kennedy concurs, but he says this presents an important applied challenge rather than a facial challenge. he calls attention to the fact that i do think is quite troubling, the the line drawing

about what matters and a legislator has an interest in are going to be very difficult. i was struck in our discussion of citizens united with justice kennedy,'s statement in the earlier case that ingratiation and access are not corruption. ingratiation seems to be exactly the interest for which this nevada legislature was recused, because it is his campaign manager who has a claim on his affections and loyalty. that is what this is about. i think kennedy is being consistent in being worried about this in both context. >> will you take the question? heather? >> what is interesting is the way it fits into the long- running court argument about this question, where both have

expressed dimensions. the kennedy/scalia divide it goes very far back with protest votes. kennedy, the first amendment romantic, sees expressive dimensions to it. it gets the court tangled up. here i think scully it is consistent. but i do not think the rest of the court has figured it out, these controversies over disclosing people who give money to initiatives. there was a recent case involving sun in the referendum, whether that was a public act that could be disclosed or something more like a boat that had to be kept quiet. on the way to the court right now is the case involving prop. 8. people who give money on the same-sex marriage question in california were confronted by gay-rights advocates for what they did. some of their stores have been

boycotted. people have been fired on these grounds. the question is what are you doing when you are giving money to prop 8. are you a legislature because it is your vote and is a powerful moment, it is an exercise of power? or is it something more private and expressive? the court has not come down with the position. the argument keeps popping up, but they have never pin down what they think of it. >> i think a big worry about the nevada at the commission's case is that the majority is inadvertently taking sides on a classic issue of political theory. they do not even seem to realize they are doing so. let me read you two crucial sentences. the legislature that casts his vote is a trustee for his constituents, not the prerogative of personal power. voting by a legislator is

different than voting from a citizen. a voter's franchise is a personal right. you see why a majority has to say that. if voters are trustees for someone else, they would be subject to the same logic in their vote would not count as protected speech either. but that is a classic view in political theory, articulated by john stuart mill most famously. the vote for citizens is not like a piece of private property. it is a function you exercise as a trustee for the rest of the citizen body. justice scalia assumes a way that line of argument in a way that i think would require a lot more work to sustain. >> it is a question for mike. as you describe well, the court says a legislative vote is not speech. the court goes on to say that the legislator at issue does not have the right to vote and so it

is permissive to ban the legislator from participating in a legislative session as a valid time, place, and manner restriction. speech during a session is speech. it is not a vote. my question is maybe that is right. i do not know who else has a right to speak during the legislative session if they are not point to be voting. but it did in the court frivolously and seamlessly move from one conclusion to the next. i wonder if it is more complicated. >> i agree. it is one short paragraph in this opinion that addresses the advocacy side of the recusal wall. i was not satisfied with the logic of this. there are people who have a right to advocate on the floor without voting. for example, representatives of territories do not vote in congress, but they do have a right to speak.

there also are numerous other arrangements in city councils, for example, where there is often a time when citizens have the right to speak to the council, and so forth. i am not really sure where the court comes off -- exactly what the real logic is extending the recusal provision to advocacy. i think it is troubling. >> would you like to move on to other first amendment cases? >> the key to victory for the first amendment side in the -- the key in the nevada case is the court deciding the citizen'' speech. once you get the court to see this action as being speech, speech protection things kick in. this is even in cases where it

is a matter of legitimate dispute whether what was at stake is speech. here in sorrel versus imf health, there is an interesting case. this case involves information that pharmacies get through government-mandated procedures when doctors send in procedures. the information is kept so the pharmacies know what kind of drugs individual doctors are prescribing. this information can be used for health specialists to be studying issues of an old prescription, and for help economists to consider such things as the use of generic drugs. it can be used for a variety of

purposes. but state law in several states forbid a pharmacist from selling disinformation to drug companies. the reason drug companies want this information is that they send their representatives to do what is called the killing, which is meeting with doctors -- what is called detailing, which is meeting with doctors to suggest they subscribe certain drugs. if a drug company knows what drugs a doctor is declined -- is inclined to describe, that enables them to target this marketing more effectively. i thing it is exactly what goes on on the internet when the internet tracks your purchases and mysteriously at start

appearing on web pages that are targeted directly to you. some people on the internet think this is a good thing. i like it. it means advertising is something that is going to be of use to me. but some people do not like it. they think it is either an interference with their privacy or for some other reason objectionable. this is effectively a non- internet version of the same thing. two courts of appeals split on this. one court of appeal said this use of the doctor-specific information is no more freedom of speech -- this is just regulating a commodity. this information being sold is a commodity, the court said, just like turkey. regulating it is a matter of regulating a business. the supreme court took the

opposite view. it took the view that it is speech because this is information and the purveying of information, even for sale, is a form of speech. it does not matter that there is a profit motive. the lot of information for sale is out of the profit motive. the new york times, for example, gives us information every day not out of the goodness of its heart but because they are in the profit-making business of selling newspapers. so also authors and bookstores. a great deal of speech is generated in the for-profit making purposes. the court then notes there is a discrimination in the law about which speakers and which subjects this information can be

used for. it can be used by researchers for educational and scientific purposes and public health purposes and so forth. it cannot be used by drug companies from marketing. the court said that this kind of speaker discrimination and subject matter discrimination with respect to speech is subject to tighten scrutiny. in this case, because it is commercial, the court says they do not have to decide whether it is strict scrutiny or commercial speech intermediate scrutiny. either way, the government has to establish that it has a substantial interest in the regulation and that is being served in an appropriately narrowly tailored way. i think this is a rather progressive free speech case. it again shows how important it is to get within that free

speech box. it is interesting to compare this case with the nevada ethics case. the nevada ethics case, and a legislator voting and advocating for legislation, not speech. hear, selling data mining about a government-regulated -- information generated as a result of government regulations, that is speech. that accounts for the difference in the questions. one wonders whether there is not some tension in the propensity of the court to see what is and is not speech. to throw in one further example from last term, and the court found a law school religious group's insistence that those who conduct their bible studies actually believe in the bible, that is believed in their own

religious views -- that was described as the majority -- by the majority as conduct rather than speech and therefore could be suppressed on the basis of a regulation that is merely reasonable and not viewpoint discriminatory. defining the sort of speech, the speech-related tax, a speech or conduct is outcome determinative, and not necessarily intuitive. >> when you think about this it post-1937, there is a general assumption that courts are not meant to second-guess legislators on social and economic issues. are the commercial speech cases starting back in the 70's and now including sorrell -- are they narrowing that position and

displacing that generalization with the notion that if you can characterize it as speech it becomes something appropriate for judicial review? is this another addition to that line of cases? >> i think it is. just as briar -- just as brier - justice bryer has an interesting descent. he said it is business and should be treated as ordinary commercial regulation. there is an earlier case involving advertising of food products in which the court did just treat the matter as one of economic regulation. to me, economic or not economic is not the line the court is using. i think it has to do with what

rights are protected by the constitution and which are not. much of the problem with the lord mayor area -- of the law firm -- of the loughner area is that there is no general economic freedom protected. there is no general what freedom to engage in contracts that you want to. instead, what i think the court has come to say with the exception of some of the very controversial substitute due process cases is we are going to protect what is in the constitution and are not going to protect the stuff that is not in the constitution. there is a line in sorrel that supports this. i think it is a response, and implicit response to justice breyer.

and i think i can quote it. he says the constitution does not embody herbert spencer's social ethics. a famous line from the justice holmes. and he says, "but it does have a first amendment. i think it can lead the's point is that the first amendment protect speech. this is speech. >> there was another case on the docket this term, a first amendment case. is that another example of defining in and finding out? you had the court concerned they might open the floodgate to retaliations. it is being seen as first amendment issues. that seemed a little like an example of the nevada case, an

exception to the general tack with the first amendment. they seem not to want to bring that conduct within the scope of the first amendment. >> it is conceptually one of the most interesting cases of the term. this was brought under the petition clause. there are precious few supreme court cases ever under the petition cause. this is a case in which by all rights, everyone agrees the plaintiff would have lost with the free speech clause. the question is whether the petition cause provides a separate and independent protection. this is the public employee. he is the chief of police. he files various labor grievances and also some more political grievances against the city, and the city council fires him as a result. under longstanding, although i

think rather odd and unpersuasive, but nonetheless longstanding, supreme court doctrine, public employees cannot be fired in retaliation for their speech. but it is only protected if it is on a matter of public concern. you might also want to think about snyder against phelps. if his liver -- labor grievances are his private concern, it is not protected under the free- speech clause at all. the chief of police does not go under the free-speech clause. instead, he sues under the petition clause. the significant point about the petition cause is we know historically that petitions are frequently, maybe even quintessentially, on matters of private as well as public

concern. you can submit petitions on matters of public concern, but the vast majority of petitions that would have been known to the farmers of the first amendment or matters of private concern. if you had a problem with the government, you send in a petition asking for it to be dealt with. his point is that the first amendment has different protections. the free-speech clause is not the only thing there. there is the speech clause. there is protection. there is assembly. there is free exercise of the establishment related to religion. he says if you look at the purposes of the speech clause it may be logical to give greater protection for matters of public concern, but if you are looking at the petition cause it does not have within it and the preference or greater importance

for public rather than private. if anything, it has the other way. the majority opinion written by justice kennedy essentially reduces the petition close to the speech clause, applies the same distinction to the petition cause, and says he loses. justice scalia wrote a fantastic descent -- dissent, my candidate for best of the term. he takes the majority to task for failure to recognize that these are for different causes to the first amendment. each stands on its own. i said it is a idss -- dissent. it is actually a concurrence. he says the key distinction and the reason the chief of police should lose is that when you are petitioning the government in its sovereign capacity because applies.

but when you are petitioning your employer in the capacity of being your employer, that is not a petition covered by the first amendment. so it is a distinction between public concern and private concern, but whether the employer is the recipient of the petition acting in a government capacity or employment capacity. the strikes and as a much more consistent with the history and purpose of these clauses that i do not understand why did not attract more -- justice thomas agreed with that. i do not know why it did not attract more votes. what is this important? it is part of a trend over the past several years of collapse and all the various parts of the first amendment into freedom of speech. i think this was a serious mistake. last year in the christian legal society case, this religious

group or referred to brought freedom of association, the modern way we used to speak of what the framers spoke of as assembly. they have a separate claim. we have a right to constitute our group with our leaders being people who agree with our beliefs. that is an essential part of freedom of association. and we can not be penalized by that -- for that by being excluded from otherwise generally available public benefits like being able to meet in classrooms at a public law school. the supreme court last year said, essentially, that it would be anomalous to give the group greater rights under the freedom of association than they would have an entitled to under freedom of speech. that is the entirety of the logic, that it would be anomalous. i think on the contrary it is

not at all anomalous to say that the different provisions of the freedom of the first amendment are protecting different aspects of communication, and in slightly different ways. what is anomalous is for the court to bomb them altogether -- glom them all together and say we have a free-speech clause and no other cause provides additional protections. we would be able to say the same thing of press, which has been reduced to freedom of speech. association reduced to freedom of speech. the addition largely reduced to freedom of speech. this seems to me to be an unwarranted development. >> thank you. you see mike is right. it was a big first amendment term. time is running. we want to be sure to give ample time to federalism and the important cases this

>> by my count there are five preedges cases the past term. i won't try to subject you to my view on each of them but i will try to treat them together and identify three questions that are worth puzzling over about the preemption cases. they are not the most exciting but i think several are profound profoundly important. the first question, why so many preemption cases term after term? second question, is the roberts court fairly described as a pro-preemption court? what are the cases from this term albeit with a small sample size telling us about that. if the roberts court is fairly characterized as a pro-preemption court is there anything to be concerned from a feder federalism perspective?

first, why are there so many preemption cases. i will briefly summarize the subject matter of the cases. i think that will go a long way toward illuminating why we have so many. chamber of commerce against white being the issue was whether an arizona law imposing licensing sanctions on people that hire unauthorized aliens is preempted. at&t mobility against concession was whether the federal a ruletion act preempt ed of california contract law the discovery bank rule which deemed class action waivers in arbitration agreements when certain criteria are wemet. the next is vaccine law and whether it preempted claims against vaccinate manufacturers. williamson against mazda motor concerned federal auto safety

standards and whether they preempt state tort. and the next one that came down thursday concerns federal drug regulations specifically the regulations applicable to generic drug manufacturers and whether they preempt state law tort claims alleging a failure to warn. look at these five cases together, what do they tell us about why there are so many preemption cases? i think they say they are sites of ongoing disagreements about multiple issues simultaneously. they are cases about feder federal-state relations. people care about this a lot. preemption cases often involve disagreements over the proper scope of the government regulation of business. regardless of whether the roberts court is a pro-business court people care a lot about government regulation of business and when they care enough they make a federal case

out of it. preemption cases are also conflicts over how certain social problems are best rec lated. through agencies, through an agency paradigm, regulatory or through judges through common law decision making. finally, i would add that preemption cases often arise when states take action with respect to certain hot button issues of the day. for example, immigration reform in whiting. for all of these reasons, we have a lot of preedges cases and i -- preemption cases and i pt want to add a hypothesis for why we might have so many and that is because preedges cases are hard -- preedges -- preeveryone shun cases are hard. congress does no favors as we try to figure out what congress

had in mind when we wrote a law. do we look at the statute or statutory context including history and broader congressional purposes? do we look at all of them or only some of them? the fact that preemption cases are difficult because content is hard to discern means that judges are going to have to make judgment calls. judgment calls will be contestable and contested. they will end up disagreeing and the court will be moved to intervene either to resolve circuit splits and there are a lot in preemption cases or to make a judgment call on its own. how one goes about divining intent is not easy to answer in the abstract and across the board. indeed, the same justices deal with the question of congressional intent differently in different cases. i think that of the most important preemption cases show

this. in whiting the immigration case the court held in part this law which imposed licensing sanctions on employers who hire unauthorized aliens was not preempted by federal immigration law. it preempts any state or local law imposing simple or criminal sanctions other than through licensing and similar laws upon those who employ or recruit or refer for a fee for employment unauthorized aliens. the majority opinion the chief justice emphasized the plain language of the statute specifically the reference to licensi licensing and similar laws and argued for the court that had enacted a licensing statute and it fell within the scope of the savings clause. the dissent emphasized the

broader con connect and why congress -- connect that the court couldn't have had that in because it would blow up the preedgmption statute. so that is a case where you have one side of the court arguing language structure and the other side statutory context. contrast that with conception. this is a case where the court held that the federal arbitration act rule of california contract law which deems class action waivers in arbitration agreements unenforceable when criteria for unconscionability were met because the court said there was obstacle re-- preemption. you have the same split essentially as in whiting with the exception that justice kagan

is recused in it. you have the chief justice roberts, scalia, thomas in the majority and you have four in dissent. in this case, justice scalia for the majority doesn't emphasize the language of the federal arbitration act. instead justice scalia emphasized what he called the principled purpose of the f.a.a. which he described as ensuring the enforcement of arbitration agreements according to their terms. the point of affording party discretion designing arbitration processes he wrote is to allow for ever streamlined procedures tailored to the type of dispute and in the court's view class arbitration interfered with this when compelled by state law. by contrast the plain language was emphasized of the federal arbitration act and specifically he argued that what california

had done fell directly within the scope of the act exception permitting courts to refuse to enforce arbitration agreements on grounds that exist for the revocation of any contract. california was treating class arbitration waivers just like it treats other contractual provisions better found to be n uncon is shown believe. so the fact that you have the same justices in the two important cases trying to divine intent in al different ways suggests that divining in is difficult. that is the first question, why so many cases. the second question is whether it is fair to characterize the roberts court as a court.emption here you must be careful. it is one term and only five cases. if you look at the numbers the vote is 3-2, the court found three cases and not two. that is as close to 50-50 as you can get with an odd number of

cases. nonetheless, i think that as good judges and lawyers know, not every case is worth the same amount as every other case. i do think whiting is a very important decision in which the court found no preemption but i think that concepcion is an important decision in which the court found preemption and which the majority didn't so much as mention the longstanding presumption against preedges. it has been around for many decades and designed as a protector of federalism values. the federal law can be reasonably read not to preempt state law it should be so read allowing states regulatory economy the ability to accomplish things in a world of often pervasive federal regulation. the next one is important in which the court splitting with the chief justice roberts, cancel gentleman, found

preemption and changed the law to make it easier for defendants to make out a case of impossibility preemption. the court invoked the doctrine of impossibility preemption to hold federal law immunizes generic drug manufacturers from warning claims because the court reasoned the generic manufacturer cannot hraoupb laterally change the labels on their own unlike the brand name manufacturers the generic manufacturers have to petition the f.d.a. to containing the labels. you have justice sotomayor saying we have never before made it so easy for a defendant to make out a case of impossibility preemption. the majority assumed that the drug manufacturer was under an obligation under federal law to petition the f.d.a. to change if the manufacturer was persuaded the label didn't provide adequate warning and was

not compliant with state law and she would have found at least the manufacturer was obliged to bring it to the f.d.a. the court said, found otherwise and didn't mention the presumption against preemption and a plurality of the court and a part of the thomas opinion that kennedy didn't join appeared to reject the presumption against preemption. it is four justices who did so based on a novel textual ills and originalist interpretation of the supremacy clause that originated in a 2002 law review artic article. it was left to justice sotomayor to reaffirm the presumption against preedges -- preemption.

to some extent the jury is out. justice can't deni kennedy didn that but joined the majority opinions in which the presumption against preemption makes no appearance at all. the last question is why this matters. if this court is a pro preemption court is there a of concern and i think the answer is yes. i'm relying on the scholarship of my friend at duke ernie young. he argued if you care about federalism you ought to care about preemption. we live in a world of broad congressional power under 1, section 8. if you look at lopez, wickard i don't see that changing. but preemption cases happen all

the time and they are the ways federal inch -- federalism is worked out day to day. it finds the less there is left for states to do. so if you care about state regulatory autonomy and their ability to govern as separate sovereigns you ought to care about the roberts court as a pro preedges court. >> i agree with most of that. but i think that the very end not so much. i think it is a mistake to talk about federalism, as if every issue of division of power between the national government and state is driven by a single sort of federalism principle. you are either for the state or the federal government. what we have is a complicated l allocation over authority and there is no reason why there

no consistency across each of these little areas because the constitution itself gives congress power over certain things and not so much over others and i would say looking at the preemption cases there are three of them that have to do with products liability for corporations who products on a nationwide market and congress has set up a comprehensive regulatory scheme to evaluate safety and warnings and so forth. i would have thought that cases of this sort are at the heart of the kinds of power that the trailers did give congress. that is one of the key things about the commerce clause was to 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 being balkanized by different concerns. to my mind, to be pro preemption

with respect to products liability where there is a comprehensive federal regulatory scheme is -- makes a great deal of sense. i'm much less persuaded in a case like concepcion where it seems to me the question of the enforceability of contracts between employers and employees is a traditionally state function. i'm not saying it is unconstitutional for congress to get into that, but there is no obvious national uniformity, no obvious need or common concern there. so if we are interested in a more texture d idea of federalim ther there should be less of a presumption in favor of preemption there than in the

others. i just don't like the idea that we should treat preemption and federal inch as one size fits all. i would say the whiting case does fall 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 if -- if only because congress itself said states may use licensing laws to achieve their own local regulatory purposes, not because of any kind of presumption in favor of states or against preemption. >> i think that i agree with much of what mike said in general although i think i disagree with some of the specifics and that determines the outcome in cases. o you are right that it s tpist

just about arguing for the states or against them, i think you need a nuanced understanding for the federal government and what are for the state. i do think constitutional federalism and statutory federalism overlaps in that way. i think that where i disagree with the specifics is in the way you are characterize the f.d.a. rec legislations in some -- in some of thieves is a comprehensive federal scheme. if it is comprehensive in the relevant sense then the federal government is already regulated here and there is not much left for the states to do and i don't think that reflects reality. i think everyone knows including the f.d.a. that the f.d.a. doesn't have the resources and personnel to monitor brand name and generic drug manufacturers, that the f.d.a. relies on the manufacturers to bring it to the f.d.a.'s attention if their labels aren't up to speed.

the court assumed in this decision that the generic manufacturers were under a state law obligation to petition the f.d.a. to change their labels and the court said nonetheless this federal law that gives them a federal obligation preempts state law tort liability claims. so my disagreement with the details is about just how comprehensive the federal scheme is here and i think that the presumption, not just the presumption against preemption in general but where states have long regulated and some tort liability cases at issue are areas in which the state has long regulated and the federal government hasn't regulated as comprehensively as i understand some of your comments would suggest. >> we are almost out of time but i hate to wrap things up without something said about the wal-mart case. heather? >> wal-mart was a gigantic class action involving 1.5 million

plaintiffs, women at wal-mart brought a claim that said in essence that wal-mart policy of giving a great deal of discretion to lower level managers to have a highly decentralize decentralized system of promotion and pay hurt women and they were made in a discriminatory fashion and the entire class of 1.5 million women ought to be able to bring a suit. there are two key pieces of the opinion. one that had a lot to do with civil procedure and one that had a lot to do with employment discrimination. the civil procedure rule is fairly simple. for those way back in the days of rule 23 under rule 23-b-2 you typically bring the claim like injunctive relief. imagine a housing segregation claim where everybody will be affected by the same order.

the plaintiffs brought it under 23-b-2 though they were seeking individualized back pay awards and they said the back pay awards were not -- didn't predominate over the common claim and therefore they could bring it. and the court unanimously held that this is inappropriate. and that those back pay claims were more appropriately brought under 23-b-3 which allows for notice and opt-out. the more interesting part of the case is the employment discrimination piece. this is where the court divided. justice scalia said in essence there was no common claim among the plaintiffs here for discrimination. that it was not fluff to say -- it was not enough to say there was a common policy of giving lower level managers discretion and it united the claims. the dissent said that was sufficient to satisfy 23-a

commonality and as often happens in these case what is is moving the justices of the court are two completely different pictures of what discrimination is. justice scalia subscribes to the more conventional account which is are intentional actors deliberate discriminating against women and he can't imagine that 1.5 women are all sharing the same claim because he imagines there are better and worse actors, there are some that don't discriminate tom and quite a bit so how could you unite the claims. the dissent was the discrimination is subconscious, it is prethought. it is the way we think about women in the workplace and we are less likely to see women as being successful managers and that preconcept discrimination infects any decisions so ginsberg finds it easy to imagine this would affect all women and cites a study of

orchestras where it turns out when orchestras began to use blind tryouts where you couldn't see the gender of the person the number of women in orchestras increased dramatically. so, why was that? it was not as if people who were choosing before thought we don't like women and we are not going to choose them. the study suggests that what happened was that people used to think that men were better musicians. so, when they heard a man play they thought his music was better than they heard a women but when you blinded them to the gender you therefore increased the number of women. that is what justice ginsberg thinks is going on. and i will say one quick thing. the social science does back justice ginsberg. there is a lot of evidence that we all have these biases where before we even think of what we are going to do we have these ways of classifying people and they don't help women in the workplace. but if you think about this as a question of what courts can do,

you might ask yourself this question. are courts well suited to dealing with structural inequality rather than bad actors. are they suited to deal with questions of implicit moat station that affects everyone? or is it possible in the past the courts can only lead us so far and lawsuits may as the majority suggest not be the right way to correct workplace inequality going forward? >> thank you, heather. there are more cases we could have talked about but i hope you will agree that it is better to do a thorough job of fewer cases rather than a superficial coverage of a lot of cases. there is more to read and there are opinions there. i'm sure if time permits after we conclude today if you have a question they might linger long enough. we have not included a question and answer period and i apologize for that but you can why.stand it was difficult to do it at all. but you have been a wonderful audience and thank you for being

with us and chief judge may i turn it back over to you? >> we are now at the conclusion of the program. i have a few thanks to make. first to sam fliphillips. things have gone sphaofrmoothlye owe them a round of applause. [applause] >> it ran smoothly particularly when you consider the number of people here. people think it must be easy to do. it involved a lot of work and we are very appreciative. all the folks from west virginia thank you for planning the program. it has been well received. i think everything has gone great. i declare this the best conference we have ever had. it now -- we now conclude the 77th judicial conference of the

fourth circuit. have a safe trip home. thank you. [captions copyright national cable satellite corp. 2011] [captioning performed by national captioning institute] >> a pentagon spokesman held his final briefing today at the pentagon. he talked with reporters about his time as spokesman and took questions about troop withdrawal in afghanistan and operations in libya. this is 40 minutes.

>> very clever. have i had a pink one on. what about socks? socks on? good afternoon. it is great to see so many of the pentagon press corps out in force today. thanks for coming to my final briefing and thanks to so many colleagues. i see in the back there. even my family to the right is here. it is an honor to have all of you here and a bit humbling. i will have to be on my best behavior because both my mother and my mother-in-law is here, am i wife unfortunately is suck on the subway but she should be here.

i know that it may be a disappointment to those who usually enjoy the sparring and i will be on my best behavior as may be the fact that i'm not planning on this being a very news worthy news conference. i have a few scheduling i want to use ut the opportunity to express my appreciation to so many of you. first, as you know this is secretary gates's last week on the job and there are quite a few farewell events culminating with the farewell tribute thursday morning that ceremony to which many of you are invited and all of you are welcome to cover. the secretary is honored that president obama is scheduled to attend and make remarks on thursday. later that afternoon the secretary will fly home to washington state where he will once again try his hand at retirement after a couple of notable failures. he assures me he is determined to succeed this time. friday marks the beginning of

the new era at the pentagon. that morning the secretary designate lee on panetta will be sworn in. that is expected to take place in a small private ceremony in office that morning. with the new secretary should come a new press secretary. i plan to relinquish my responsibilities thursday and will leave the pentagon in july to focus on considering what comes next for me and my family. but you will be in excellent hands with the team here at osdpa led by doug wilson, brian whitman and a new pentagon press secretary. at this time if you will indulge i would like to offer a few thank you. to dan and cole the communications directors. i can't thank you enough for recommending me. thanks to president bush for having the confidence in me and giving me the opportunity to serve in this administration.

also i would like to thank president obama and his team for retaining confidence in me and allowing me to continue serving in this position after they took over. it has quite simply been the most professionally rewarding four years of my life that. is largely due to the fact i have been able to work closely with one of the great statesmen and public servants of our time. you have gotten to know secretary gates well especially those that travel with us. but i cannot tell how much honor it has been for me to be part of his team as he has dealt with of the most challenging and consequential security issues our nation has seen. i'm forever in his debt for the access he has given me the faith he showed in me and wisdom he shared with me. most of all i'm appreciative of friendship we developed over long days in the office and long trips around the world. i am just as honored to have been able to work closely and develop friendships with so many outstanding men and women in uniform.

i arrived here in june of 2007 full of excitement and ready to go but overwhelmed by all i had to learn about the military and this place they call the puzzle palace. to my surprise despite the fact i was a reporter and never served in uniform the troops were welcoming me from the get go and bent over backwards to help me learn everything from their mccullough and traditions to strategy and weapons acquisition. it has been my supreme honor to help explain their mission, give to their concern and at times from this podium fight for their cause. i have been blessed to do so with a tremendous group of civilian colleagues. a policy personnel and procurement experts who have tutored me over the years lest i make a mistake that makes their already difficult jobs more so. no one has been more helpful in that record than the public affairs professionals led by doug and others i mentioned and kept me on top of the issues and

largely out of trouble. i can't thank them enough for their support, patience and friendship. of course, you know the one person without whom i could not have succeeded and that is all of you she is the true m.v.p. of our little team. she's unfailingly pleasant, patient as a saint and more capable than most people twice her age. wife says she doesn't know what i'm going to do once i leave so i may have to take her with me. that is on my july to-do list. i would like to thank all of you. the members of the pentagon press corps. the reporters who cover this building have long been considered the best in washington. i believe that is still the case. your commitment to this huge complicated beat is without parallel. your ethical standards and professionalism are the best in the business and your dedication to covering the wars we are fighting is appreciated by all americans chief among them those

in uniform. like they, you travel great distances, endure long separation from family and friends, work in extremely difficult conditions and do so at personal risk. i know i have not always -- we have not always agreed on how stories regarding this department should be covered but i would like to take this opportunity to publicly thank you for covering them. especially durke -- during the difficult times with the news business. i know i have been tough with you and even though it was usually motivated by my desire to ensure accuracy i apologize if you took offense. that said i believe we have had on the whole a very productive working relationship. as a former reporter i came to this job knowing exactly what you needed to tell a story and i worked hard here to try to help you get it. in doing so however i quickly discovered that i would never be an expert on military matters as

those who have long worked here but i could provide you with some something none of them could. a clear understanding of where the secretary was leading this departme department. with that in mind i set out to help you get to know him better, whether here in the briefing room, during sit-down interviews or our travel including more relaxed settings. i tried to expose you as much as possible to the man i know. as my wife can attest i tried to make myself available at least v via blackberry providing colorful quotes to off the record guidance. i always tried to be a straight shooter whether it giving you a credible steer, telling you when i don't know something or that i simply can't help because an issue is too sensitive. these ways and many others i hope that i was able to provide as much value to you as the pentagon press secretary as i have tried to. i leave this job with the utmost respect for all of you and will

continue to follow your stories closely. in fact, don't be surprised if you get an e-mail now and again with a thought or two about what cover been better. it is only because i care. with that long goodbye and public thank you i would be happy to take a few preferably nonsubstantive questions. and i remind everybody over there you will not be recognized for any questions. ok. we can cut the cake. >> i have one substantive and one journalism question. will they all be staying after secretary leaves? >> i think those are questions, decisions to be made by the incoming secretary. the outgoing exactly has no plans to make change to senior personnel. i do not know what secretary panetta's plans are with regard to his team. i have not heard of any changes. >> question two, you came in as

a reporter trained to pry information out of institutions. four years later can you give any sense of whether there building a cult of secrecy and overclassification of secrecy is too great and they need to loosen up mindset-wise? >> when i took the job and met with my predecessors, ken bacon or others, they all had one shared bit of advice and that was to retain your reporting skil skills. because the information does not naturally flow to this position ironically. so, you really have to work the phones and work your sources and get what you can on your behalf. i think that is true. so, i don't know, i think this building is at one time very difficult to crack and yet somehow you all have done a magnificent job of finding out lots of things we would prefer you not find out.

so, we sometimes have this both ways. i know the secretary laments leaks that sometimes jeopardize things that we are trying to do. at the same time he kphepbdz you all as he -- commends you that you exposed some of the poor outpatient care at walter reed and had you not shone the light he could not have enacted changes that were to the benefit of our troops. but this is give and take. it is a nice healthy tension that exists between this building and the press corps. we try to do it and we should be more timely but there is a need for operational secrecy in order us to do all the things that i think the american people wish for us to do to keep them safe in their homes at night. >> first, i want to say thank

you very much. we appreciate all the hard work that we know you have done the last four years and i think that we all appreciate the access that we have had and the consistent briefings and things that you have done and we hope that the next secretary and -- keeps that. >> thank you. i don't think you will have a problem with secretary panetta. i think he knows many of you and enjoys engaging with all of you. >> on a more substantive note i know there are a number of these libya discussions, could you talk a little about what if any impact any of these may have on the operation itself and whether or not the secretary is doing -- the secretary or any other people within the defense department -- are engaging members on the hill to talk about what impact these things may or may not have particularly the discussions about

hostilities and whether the u.s. is involved. >> the secretary has been on the record on this issue a number of times and number of places, most recently i think the sunday shows a week ago this past sunday. so, he is on the record on that so i won't elaborate on that. but with regard to an amendment that would have defunded the place that is something i think i spoke out against that in zhangry la several weeks ago. i think the secretary's belief on that is once we are committed to a military mission it is not wise to pull the rug out from under our forces by defunding the operation. that is not helpful. that is counterproductive. so, he's very much opposed to that. i don't know how that has been communicated to the hill. i assume there have been senior level communications from this department up there. i think that thankfully that resolution failed in the house as best i can recall. but i don't think the secretary himself has been -- has made any

calls on that matter that i'm aware of. >> housekeeping question and substantive question. housekeeping, if the new secretary is sworn in friday morning, that for purposes of continuity when the actual transfer of authority happens or some time overnight thursday? >> it is my understanding it would take place when he is sworn in. that is one reason the secretary flying out on military air is he still has the responsibilities of the day and not until secretary panetta is sworn in. >> he flies out thursday with full communication? >> correct. >> what have you heard the secretary say since the president spoke about the afghan withdrawal plan, now that we know general patraeus and admiral mullens say it was more risky than what they would have

wanted and proposed, what is the secretary's view on that especially in late of his remarks to "newsweek" that he has a sense that the u.s. is headed to not be the automatically preeminent force any more? i'm paraphrasing his words. >> i think he said that is a possibility. one he hopes he won't see happen. with regard to his views, i think you have heard more of the secretary the last few weeks than you ever heard from him and he has been, i think, pretty clear on this subject. this was a decision that was driven not just by the ground but hadhe to be at the same time politically credible. that there is a war weariness in this country that needs to be recognized in whatever the decision the president was to make for this to be a sustainable mission. so, all those things were factored in when this decision was made and i think the

secretary is very comfortable with the fact that we will get basically three-quarters of a second fighting season with these additional, with the prepond rapbs of the surge forces which will mean this summer is almost a year longer than the surge with iraq lasted. so i think he is comforted by that fact. but he also recognizes the fact that we need to be able to show a dividend for the success we have had and we need to recognize the fact that every 10 years at war the american people want to be able to see that we are making progress but also that that progress involves bringing some troops home. >> you are saying then the secretary feels political did play a role in the final decision? >> he has always said, as i just mentioned, this must not be driven just by the conditions on the ground but it has to be politically sustainable. he understands that the

president has to take into regard how do you keep the american people and congress for matter on board especially when we have enormous fiscal pressure. >> those are considerations that you mentioned the chairman and general patraeus, those are circumstances that they should not be considering as commanders or as military advisors. they are there to provide their best military advice. the secretary obvious is the civilian head of the department but he is cognizant of what it takes to keep the mission going. >> is that the morrell section? >> it is. >> the warrant for the november election could get that instead of the three-quarter -- >> you are the one suggested it driven by the electoral season. i said that the political

sustainability of the mission is a factor that the secretary deems is more than appropriate considering that we have to keep the american people on board. and we are talking about spending, as you know, up towards of $10 billion a month in afghanistan. that is a considerable sacrifice of the american people. >> we are going to spend i think almost $110 billion on this but we will check on this. all right. >> has there been any more discussion considering the stalemate in libya of lethal aid providing, the u.s. providing lethal aid to the rebels? >> not that i am aware of. >> on afghanistan, could you clarify or explain the secretary's role in discussions and deliberations. can you explain this a little bit in this case. was this a situation where he s

was getting into his own amendment or compromise proposal that brokered the final decision in the deliberations? >> well, i have seen stories out there that have characterized it in that vein, that this was sort of the gates compromise. i don't know. i don't think he characterized it that way. i think he was asked about that by jim lehrer and i think that he backed off from answering that. so, i think out of deference to him i won't take the bait either. >> could i have a two-part? >> please. >> on the budget, there is now these stories with some of the republican lawmakers saying they are now perhaps more open to cuts in the defense budget in the deficit talks. does that raise alarm bells in the building and secretary about what you call mathematical cuts? >> well, i saw that story and i

don't -- to me i didn't see anything new or particularly in it.g i didn't see any particular number target. i didn't see any sort of suggestions that this should be done in an unwise fashion. i think that the reality is that secretary gates saw this storm cloud as i referred to it forming on the horizon many, many months ago going back to may of 2010 when he first went to be a lean, kansas -- abilene, kansas and gave the lecture at the eisen hours library about how we have to do some internal work to make sure we are best prepared for the fiscal austerity we are likely to face in the future. so i think he's been well aware of the climate economically and politically for a while and we have done a lot to prepare ourselves for that. as you know, we are now being asked to find another $400 billion in the department over the next 12 years.

that is a significant sum of money, one that if not handled very carefully could be devastating to the department. so, he's determined, he has set about a process to do this in a very measured and deliberate and careful way, making sure there are not across-the-board cuts that would hollow out the military a la the 1970's and 1990's. and from everything i understand director panetta is very much on board with that process. and he shares some of the same concerns the secretary does. but this ultimately will be his to work out in the coming weeks and months. phil. >> thanks again for being responsive to all of us with your blackberry 24 hours a day, seven days a week. on pakistan, secretary of state hillary clinton said last week that there could be reductions in aid, military aid to pakistan

if they were to take steps. you talked about political sustainability. does the secretary believe the current levels of aid to pakistan are politically sustain able in the wake of the bin killing and are there areas the pentagon is prepared to start reducing aid to pakistan pakistan? >> i have not heard the secretary since the bin laden raid and i don't think he has been asked about the levels. i think what he continues to believe is we need each other. this is a complicated relationship. it requires effort on both of our parts. we both have a huge interest in the outcome of the terrorist problems on the afghanistan-pakistan border. but fundamentally he believes we have to work together. i have not heard him being an advocate for reducing our level of involvement or commitment to

pakistan. he shared some of the frustration that secretary clinton and others have mentioned. but ultimately he was there when we walked away the last time and he saw the tragic consequences and i think he has been consistent on this the past four years that we can't repeat that mistake. i know that is not precisely what you are looking for from e me. two more. let's do mick. >> wherever it is you may go on your next endeavor, are you going to take tara with you or let her remain here with us? >> this is typical of mick. he comes in after the opening stateme statement, and -- >> the first time you have ever been here for a briefing. >> that is my family. i got to figure out how to live without her or take her with me.

i have to figure it out in july. >> we would like her to remain of course. >> you would have liked her to remain and me to leave years ago. courtney. >> first of all i think that is the first goodbye speech i heard where you apologized for your behavior. >> any time you heard me apologize for behavior. >> thank you for your words. if i could ask you one last time how many mrats do you employ? >> we bought 27,000 of them, right? >> you bought. >> at a cost of $45 billion. seriously, thank you all so much. it has been a true, true honor to work with all of you and i hope we get to stay in touch and maybe work together again in the future. take care. [captions copyright national

cable satellite corp. 2011] [captioning performed by national captioning institute] start by saying i'm really sorry and i apologize up front. i want to welcome michael and ellen morrell. i didn't realize fox was part of the family section. before you go, jeff, on behalf of all of us here and you have many colleagues mere from the front office and many from the press office and public affairs. over the course of these last and a half years i think you can count yourself with people like secretary clean and cohen in terms of the relationship that you have had with the principal officer here, ability to present his views honestly and credibly, the

24-7 service that was acknowledged to the press and in terms of making sure questions are answered. and certainly the last several weeks the access that you have provided. you have been truly the face of secretary gates here at the pentagon. when i first came here i know that people thought this is going to be the odd couple program. but i want to say personally how much i have enjoyed working with you. i appreciate what assistance and given me and on behalf of all of your colleagues here i just want to tell your we are very proud of you. >> and in doing that, we have a small token off our appreciation. we wanted to particular out what would be bested to represent

your four years in dealings with the press. when we saw this, we thought this said it all. [applause] >> it is a very violent pose. it is like he has something in his beak. thank you. >> since i'm up here, are there any questions? >> that is next week. >> the apology won't stop me. late.a little >> i want to describe a typical week, maybe a little aat this point tkal calendar -- atypical. began on a saturday when we were assembling to go to china, japan, south korea and adam and

i had a story in the paper. and jeff comes and greets everyone all the traveling press, comes to me and says, you are so wrong. he goes, you are so off your game. he said, you know, general patraeus called this morning and he said your story is totally, totally wrong. now, i'm going to detour from my narrative around tell you a couple of things that this story reported. u.s. military command per afghanistan seeking ways to maintain the combat troops as they make plans to cut the number of american personnel. just six months later secretary gates himself said that. hmmm. and adam found out. wrong at the time. commanders in afghanistan would cut up to 10,000 staff positions

this year. ok. that was day one. ok. so, get to china, write my first story, u.s. -- china takes hard line with u.s. on taiwan. reporting that the chinese defense minister would make clear china would suspend military ties although pentagon officials were hoping for more enthusiastic response from the general the reaction was not unexpected. next morning, phone rings. 6:00 maybe? you and the rest of the proceeds totally missed the story. you all get together in a room and collude on the story line! it is like 6:00. next day's story fine. gates north korea will pose a threat to u.s. within five years. fine, no problem with that. i get a memo that is not news.

said that before. the next day finally i get a story in the paper, next story he doesn't complain about. you know, you know, when the stealth jet flies he is happy. but this time so many complaints by this time i'm not talking to jeff, i'm like totally shutting the guy out. so i get an e-mail, you know i love you. then it goes on. but what are you getting? why don't you just report where he says? where does this analysis come from? the story that this reaction got. u.s. defense secretary robert gates attempted to reduce pressure on the japanese government to move quickly on relocating u.s. military. why bother? so, you know? i have been looking for insight

into this man, why, why this behavior. just a couple of weeks ago i came into your office and the "wall street journal" had written an editorial, you know, perhaps you could factually disagree with. jeff was complaining about it. then he said, you know, i'm going to miss this part of my job best of all. most of all. so, jeff, my little gift for you -- >> a hroplong preamble. >> i want to conclude on a serious note and i do want to thank yo you because there have

been stories that you went the extra mile to make sure that we have it right to push back on the pentagon when the natural reaction was to not cooperate. and you possess the most important, one of the most important qualities of a good press secretary, access to your boss, knowledge of your boss and trust of your boss. and the job doesn't work, this department doesn't work, our job is much harder when that is not the case. so, thank you very much. >> thank you, i appreciate it. [applause] >> i don't recall any of that. >> except i do were saying i do love him and i do remember saying julian you are so good but you are in a slump right now. we have to get out of this slump. >> any other questions?

if not, we have one other individual that we want to recognize here this afternoon and that is tara, who has done a phenomenal job over the course of her tenure. and you are right, mick, to ask whether we are going to keep her and there will be a tug of war. there are a couple of things we want to say and to present to you, tara. first of all, i personally want to say that this is a career that attracts an awful lot of men and women because they are interested in the press and being at the center of things and being in the spotlight. and i want to say that you have been there and you have conducted yourself as a thorough professional. been a paragon for helping folks on trims, for responsiveness and i wish we could clone you. still cause of cloning

not being legal, maybe we could have a conversation. we have something instead and to go me ask jeremy martin ahead and read it. >> second of defendant medal for outstanding public service presented to tara for distinguishing herself by outstanding public service special assistant to the pentagon press secretary of april of 2009 until june 2011. she worked tireless ly assistin him to facilitate all aspects of the secretary of defense communication strategy. she was personally responsible for coordinating the secretary of pentagon media engagement and ensuring all logistical requirements were met logging hundreds of thousands of miles she was solely responsible for coordinating all aspects of media trample and engagement on the secretary trips in the continental united states, overseas and in combat theatres of operation. of operation. whether