>> thank you very much. [applause] >> thank you. good afternoon. i am often asked what it is like to go to work every day in the white house. what is it like to walk into the oval office and give the president of the united states adviser on terrorism policy? what is it like to be in the situation room in 2003 and witness the order to commence operation iraqi freedom. what is it like to be on the south lawn, evening of september, 2001, greeting the president on that historic day.

what is it like for a lawyer, an american citizen, the son of a port construction worker. it is a privilege, duty, a source of pride and excitement. people come from all over the world to see the most recognizable 18 acres in the world. in the first time that they step into the west wing, it takes your breath away. i served during a notable. of our nation's history. following the 9/11 attacks, lawyers worked side-by-side with policymakers in washington. we tried our best to defend this country in a manner consistent with the constitution. advising the president of the united states is more difficult than advising in normal client.

president bush looked to me for legal advice, but i was not his lawyer. i represented the white house, the office of the presidency, but not the individual. a criminal investigation, president bush would have hired private counsel. i could not represent him in an official capacity. had he given the evidence related to a crime, and would have been forced to report it to the department of justice. we did our best work early in the morning in the office. we often spoke about the commander in chief in a time of war. exercising executive power

defining the limits of the president's constitutional authority in a time of armed conflict. i want to emphasize that even in a time of war and a time of crisis, there are legal and constitutional constraints on the president that have to be respected and defended. determining limits is a subject of great debate today. most often absolves in a political irina and not in the course. i have observed the limits of the president's authority as a function of his political popularity and courage to do what is necessary respective of public opinion. i think that boundaries are desirable. it is true that americans sleep easier when they think that they are safer because of the actions of the president.

but the presidential action that keeps them safe is within the limits of the constitution. was a controversial? yes. was it tough? they had to be. did they save american lives? without question. the world has changed so much in the past 10 years. now, more than ever, americans yearn for leadership. we want men and women with courage and commitment over popularity to focus on the next election rather than the next generation. readers that say that this is where i am, this is where i stand, and americans will choose the next document for the white house. we heard a lot about the promise for change.

in truth, every election represents an opportunity for change. a prominent newspaper in washington, d.c., acknowledged that talking about change is not new. people talked about change before the framing of america. but we continue to talk about change and want change. why is that? because of the nature of americans striving for something more. for ourselves in something we love. every time that i cast a vote, it is a tangible acts to make my dreams come true. -- come true. a veteran boasts for his buddies overseas. a college student votes for her

future. the person of which use in the oval office will have to work with congress on a staggering array of challenges. how can we stop iran from becoming a nuclear power? how do we sustain the hard- fought gains in afghanistan and iraq? continuing the momentum of the arab spring? what role should we play in dealing with the european debt crisis? will we in a country of the democrats have the courage to pass comprehensive federal legislation on national security objectives? when and how will it be deployed around the world?

many of the stories that i just spoke of, ultimately when they are made, they will be challenged in court. whether you like it or not, the judiciary will have a say on whether the elected branches can move forward. i am reminded of a dinner speech that i gave to a very conservative group in washington, d.c., shortly after i was named white house counsel. here i was, from austin. when discussing the u.s. supreme court, i told them that the role was to interpret the constitution and that judges tell us what the constitution requires and allows. i was booed. it was vicious. i was puzzled over the reaction. evidently the audience did not understand that while i believe the constitution means what it says, that to go outside of it

to try to discern the involvement of societal norms and international trends, that it places too much power in hands of a ticket -- unaccountable judges, the reality that they do affect policy in how they decide cases. this is why presidents elections are consequential. other than sending young men and women into battle, no decision from a president is more important than who he or she places on the supreme court. they represent the president's most lasting legacy. in 2005 i invited john roberts to my office. i had been attorney general for just a few months. the judge and i sat down alone in my office. bush had been reelected a few months earlier. we anticipated, finally, after

four years in office, the president would give the opportunity to appoint people to the u.s. supreme court. judge roberts was on our so- called short less, developed after multiple conversations. as he was recommended in 2001, much like i had recommended that judge crier, before i could be comfortable recommending his lifetime appointment, i wanted to question him on his ideology and philosophy. we talked for about an hour. and when it would be appropriate for a judge to override president. how the personal views of judge should play a role in the judging. and how he would interpret a constitutional power between

three branches. we debated how judge could give the latest in a history of signing statements and if it was appropriate to consider this -- decisions from foreign courts. i knew that it would serve him well in a tough confirmation hearing. months ago i was proud to stand before the justices of the supreme court in the court room, presenting the commission to the chief justice of the united states. everyone approaches these nominations in their own way. during the transition in 2000, we agreed on the importance of judicial appointments. it was important for president bush that the appellate court

recommendations made to the white house, the supreme court recommendation would be made by a smaller group, including the president, the chief of staff, senior advisor, an attorney general. let me tell you what i look that i and my recommendations. was it professional excellence? was it a person capable of handling the job? how would the nominee be rated? is this someone that i would be proud to have standing by the president in a rose garden announcement? the second analogous character with courage and discipline, can they stand up to the

unimaginable scrutiny of the process and hearing? no matter how unpopular or contrary from the nominee's personal biases. applying a consistent set of principles over 10, 20, 30 years without being seduced by the siren call of the bar of drama did we have 50 votes? did the president's party dominate the senate? was the president sent in to fill a seat considered a swing vote? in my tip, it might build the balance of that court. with this nomination produce an

institutional fight between the senate and the white house over these documents? was the president's strong enough to win this fight? plus, i looked at in tangibles and other considerations. president bush looked at gender and diversity in the court. in 2005 he one of a woman, the. myers with wisdom and maturity over 30 and 40 years, impacting the jurisprudence of the country. or the same reason the longevity, i considered the health of the nominee. although i am talking about it

last, my views on judicial philosophy are a matter of public record. when courts provide active law stretching, they reduce the credibility of the judiciary and in so doing undermined the rule law that strengthens our democracy. in contrast, a judge this humble and understands the role of the court decides the case is based on totally neutral principles. in so doing, that judge strengthens respect for judiciary and uphold the rule law to make choices about the issues of the day. whether by appointment or election, it is not easy to

anticipate how layperson could decide cases once they are a judge. as white house counsel, i have interviewed hundreds of men and women interested in serving on the federal bench. the interest became more personal. as my lawyers made the argument in court to defend a law passed by congress, in summary we look for was a general philosophy of restraint in the judges. i believe that a judge the understands the restraint will take it in every case. this is to have a judge of need.

i talked about the challenges the the stench of faces. remember, no matter how bad things are in our life or how frustrated we become in our elected officials, america is still the greatest country in up -- on the face of the year. to many of us forget about how privilege we are. as attorney general, i had the opportunity to visit many countries. if i had to choose one country is my home, i would choose one that provides all the people the opportunity and whose people are generous and strong, willing to sacrifice and preserve freedom at home. do we have problems here? i just told you many that exist. name a country without its own set of problems.

do we have racism, here? unfortunately, yes. but name a country more tolerant of other cultures and religions. name a country that has sacrificed more to preserve the freedom of others. people who have lost family members in afghanistan and iraq, fathers spoke in tears about their son's and children and the way that they died as heroes. america remains a beacon of democracy or freedom and safety. my father did not go beyond -- go to school beyond second grade, but i became the attorney general of the united states. there are only two ways to win

your life. the first is as though nothing is a miracle, the second is as though everything is a miracle. my father and mother started as west my seven brothers and sisters, we had no hot water the entire time i lived at home. my mother woke me up before dawn. she placed it in a brown lunch sack and i can picture my father catching a ride to the construction site, as we could not afford a car. several years ago, my mother came to visit me in washington. we toured the monuments and

museums. ovalalso took her to the office. i wanted to show her what was accomplished as a for sacrifices and the sacrifices of her father. on the day of my visit, -- >> the invitation to be with you today? >> i believe in the goodness of god. every day, i think he is great in my life and country. >> in your work and home, i hope that god shows you his miracles and continues to bless the

united states of america. thank you very much. [laughter] [applause] >> if there are questions, please feel free to ask them. c-span has asked us to walk to this microphone so it will be picked up on the broadcast. [inaudible question] >> the question i had, earlier this year, current attorney general said that the administration will enforce the laws but will no longer defend it. could you comment on the executive branch's ability to engage in constitutional interpretation and ultimately decide to enforce laws or not

enforce laws. not concerned with the underlying policy with the simple ability of the executive branch to say it will no longer defend its laws. >> every administration takes the position, every department of justice, every attorney general takes the position that they have the authority to make that decision. we begin with the presumption that the laws passed by congress are in fact, constitutional. and if there is a basis which that law can be defended, the department of justice will defend that law. at the end of the day, we have to realize that one of the attorney generals from the department of justice and makes most of these decisions in consultation with the solicitor general, he reports to the president of the united states. and the president of the united states has a particular view on it and the department of justice is going to follow that view. and so, you know, i have disagreement on some issue with general holder but remind myself

that he works for president obama and oftentimes the decisions are reflected, are made at a particular department reflects the decisions and wishes of the president of the united states and that's just the way it is. >> your comments about judicial philosophy certainly resonates with the federalist society. what role was played in the last 20 years in this understanding of what proper judicial philosophy ought to be and the role of the judiciary in a constitutional republic? do you think law schools have been promoting a correct understanding of the role of the judiciary?

>> i don't know whether or not i'm qualified to say categorically law schools have done a good job in terms of presenting both sides. i suspect depending on the law school, depending on the professor, you will have differences in what students are taught. quite frankly, i think it's important for students to be exposed to both sides of the argument. when i talk to students about my experience in being with the supreme court, for example, i tell them it's not enough to be right on the law. you may have the best argument but can you count on the five votes from that court because you are paid by a client to win the case in court and you can represent to the client that you got the best legal argument, the precedents support you but unless you can count the five

votes, that's what the client is going to care the most about is ultimately winning. one of the hardest things for me as counsel to the president is walking into the oval office and telling the president, mr. president, we didn't do well in the honda case. the court has disagreed. that's hard to do, because what the client expects is to win those cases in the supreme court. i think that more needs to be done in terms of education. i had a professor ask me the other day, do you think it's still relevant today in teaching constitutional law to talk about the original intent of the constitution, which i was astounded by that question. to me, that was an alarming signal about the state of legal education in this country. of course it's important. absolutely it's important. but i emphasize, i wouldn't stop there. to me, you go to the original

founders' inat the present time and look at the words of the constitution, but you have to understand there are many people in the judiciary who don't agree with that philosophy. and if you're a lawyer and will be presenting cases before a court, you need to understand that. you need to understand and try to get an understanding and feel about what does this judge believe in, how does he approach cases that will make a big difference in your success or failure before the court. >> important considerations to go through -- inaudible -- >> i wonder if you could comment a bit more as to how broad it should be and what's your view of the rating system.

>> personally, i had a great deal of suspicion of ratings by the american bar association. but as counsel to the president, one of the things i worried about, could i get this person confirmed. for certain members of the judiciary committee, a rating from the a.b.a. would be important in terms of a district court judge. that could make a difference in the world. when i looked at that and tried to anticipate where the a.b.a. would rate someone, because for some senators, it could make the difference in a positive or negative vote. but i do have concerns about the ratings of the american bar association and for that reason that i don't know what year it was, 2002, 2003, we made the decision we wouldn't have the a.b.a. involved before the nominating process, which was a long-standing process.

but we have to be realistic, in terms of getting someone confirmed, that rating by the a.b.a. could make a big difference and how is the a.b.a. going to rate this person. it wouldn't reflect how i felt about that person or whether or not that person should or should not be a judge but in the confirmation of someone that might be viewed as controversial. >> you mentioned that what happened on 9/11, could you fill in the holes for us on what really happened behind the scenes in the white house that day.

>> i flew out of dulls at 7:30. this is the same airport the hijackers hijacked the plane. did my paths cross with the terrorists that morning because they were in the terminal that morning with me in dulles. but i landed in virginia because i was giving a speech and about 9:00 and i got to the hotel, the white house had contacted me, the first tower had been hit. gave my speech. the second tour had been hit and knew there was a major problem. and rushed to the airport in norfolk and they grounded all air traffic and i was stuck in norfolk. my deputy was in the situation room. and occasionally we could communicate with each other by cell phone. my lawyers evacuated from the

white house. i'm stuck. i meet a navy officer at the airport and take me to the base commander and tell him who i am and said we'll try to get you back. and here we got this washington person in the way and stuck me off in a room somewhere and i was with one of my lawyers and 12:, they gave me a navy helicopter and they asked me where do you want me to take you. i said get me close to the white house. they said we'll land on the south lawn. i said nobody but the president of the united states lands on the south lawn. i worried that if we landed, that might be a problem. [laughter] >> they flew me to andrews and a white house van there took me to the underground bunker where cheney was at.

at this time, they had a secure video conference with the president. he was frustrated and was ready to come home. we waited for the president. all my lawyers were relocated to commercial buildings in downtown d.c. and finally about 7:00, i ran into karen hughes, the communications director and went down to the oval office and waited for the president to labbed land on the south lauven. he went back with me and others with the president and we worked on his speech to the nation that night and talked about what happened that day. we all had different story from that day. and 1:00 in the morning, my car had been impounded at dulles because the terrorists had parked their car in the same lot. we were back in the office at 6:00. i was in meetings all the time. i was in meetings with lawyers

or policy makers in the situation room talking about policy that i was going to take back to the lawyers back and forth, back and forth. we had a meeting at camp david that weekend and that's when we started talking about things like ok, not only can we not connect the dots we can't collect the dots. we can't gather information and that was the again he cyst for the patriot act. we looked at things like, was iran involved, iraq involved. we talked about the congressional authorization to use military force. all these things started bubbling up. i remember -- probably the day after 9/11, i was in a meeting in the oval office and everyone was talking about, we are at war, and the lawyer in me said we have to be careful about what we call this. after the meeting everyone is at the oval office and i was with

the president and we have to be careful saying we are at war and saying that we will trigger a bunch of treaty obligations and domestic statutes that may affect private contracts if we are in a state of war. he kind of looked at me and said you lawyers can call it whatever you want to, but we are at war. i got the message very quickly. that was an important fundamental decision in deciding that this was not just a criminal act, this was an act of war. and we pulled all levers of the executive power, economic, military, intelligence, everything we could to defend this country. and i don't -- it's hard for me to remember what my life was like in the white house before 9/11, because afterwards, all of my personal attention was on terrorism and terrorism-related issues, working with john ashcroft in the department of

justice and the rest of the stuff which is important, i had to hand off to the other lawyers in my team. and let me say this, the president was going to get the best lawyers in america and the team i had when president bush became president was unbelievable. i had 12 or 14 lawyers, eight of them had argued in front of the supreme court. these were all superstars and it was such a joy as a lawyer to be able to work with that kind of talent and be able to do it in the white house on these tremendous issues of such great consequence. it really reminded me of why i wanted to be a lawyer in the first place to live a life, to do something where you would make a fundamental difference in the lives of others. and unfortunately, we were given that opportunity by what happened on 9/11. and i could go on and on about what we did and how it was like.

it was hard. but at the same time, it was exciting, because we felt like we were doing good stuff as a lawyer and that's a great place to be. >> when are you going to write your book? >> i'm writing my book and i have written most of it. i have been waiting for everyone to tell their story. [laughter] >> yeah. it's always good to have the last word. [laughter] >> what is your opinion on the president's health care bill and how do you think the supreme court will rule? >> i quit trying to predict a long time ago how the court is going to come down on a case. it's so unpredictable. there are variables and factors that go into a decision by a supreme court justice on a particular case. so i don't know -- and i don't

mean to dodge this question, but i haven't studied the issue closely enough. you read things in the newspaper and hear things on television but that doesn't tell you anything as far as i'm concerned. i have to sit down and read the briefs and talk to the lawyers. i like to do that. [no sound]

[inaudible question] >> i don't know know all the facts but i do have some comments and observations. i do know when you are the attorney germ of the united states and 105,000 people that work for you, they are doing all kinds of things. hopefully most of them are ok and make good sense, wise policy. whether or not -- when the department is engaged in an operation or agency of the department or branch of the department is engaged in an operation, as an attorney general, you may or may not have personal knowledge of it. if there is a memo, it doesn't get beyond the chief of staff because there is nothing in that memo that alerts the chief of staff or sometimes the department attorney general and sometimes they don't go beyond it. if he doesn't believe anything here that the attorney general

should know about. so, you know, when general holder testified before congress that he had no knowledge of this, it would be silly, crazy to lie to congress to testify not truthfully to congress. a notion that a memo went to his office, there are many things -- i think it would be unfair. in terms of the actual mechanics of the program, president bush was concerned about the level of guns going from the united states into mexico and because he was concerned and obviously i was concerned about it. and we did look at what could be done to try to help mexico with this drug problem, the violence in mexico by limiting the flow of guns from the united states into mexico. now i have seen reports that this program or predecessor of this program began during the

bush administration. i have no recollection of that. that doesn't mean it's not true. was i ever briefed on it? i might have been. i have no recollection of it. obviously, a similar program was in place and yet obviously, i'm assuming was executed in an effective way and i'm assuming because it was effective that's why it continued under the obama administration. but i don't know enough about this. i'm asked often should general holder resign over this. i have not seen any evidence that attorney general holder has done anything wrong, but when there is wrongdoing in an agency, sometimes you have to assume responsibility for what happens in that agency. i think if general holder is harmed in a way by the fact that president obama has an election in a year and that may make a difference in the future.

based on what i know of the man, he is an honorable man and public servant who worked hard to serve our country but i don't know enough of the facts to know what happened in that particular case. >> i have an ethics question for you and a follow-up. from your perspective, particularly given your service in the executive branch, your perspective on a former executive branch lawyer who may not have been counsel of record in a case before the court, but provided advice and counsel inside the executive branch on constitutionality of that law where that executive branch

lawyer now sits on the court and may be called on to decide the constitutionality. i don't mean to pick on the justice -- >> oh? >> someone at the department of justice who is advising the president on constitutionality of a bill and helping to craft it. >> you're asking whether i would recues myself? >> sure. [laughter] >> when people ask me before she was nominated whether or not she would be nominated, i said no way, for that reason. i just felt zsh she would have to recuse herself.

she was privy to executive branch decision making and all of that would be put into play and felt it would be too dangerous for any president. i was a little surprised at her nomination. and i'm not going to sit in judgment on justice kagan as to whether or not she should have removed herself from a particular case. i think it looks a little odd, quite frankly. i'll leave it at that. >> well, then, as a general proposition -- [laughter] >> do you fill that the supreme court should be subject to the same code of official conduct and what would the chief justice do if he feels there is some improper ethical conduct?

>> i had a student just a couple of days ago asking can the chief justice remove another justice from hearing a particular case. and my answer was, i wasn't sure, but i didn't think so. my memory is and maybe you can correct me on this, this is left up to the individual justice and fortunately for this country, most cases and virtually every case, the justices have done the right thing, reckfiesing it's not enough. just the appearance of impropriety hurts the institution of the court. if there is any kind of question of the appearance of sitting in on a case where you have a relationship to the issues that you remove yourself.

>> all right. we'll let you go. >> thank you very much. [applause] [captions copyright national cable satellite corp. 2011] [captioning performed by national captioning institute] >> this year, tens of thousands of holiday wreaths were laid at arlington national cemetery. it took more than 10,000 volunteers to place 90,000 wreaths. the effort was organized by wreaths across america which conducts similar efforts nationwide and will remain on view until january 28.

>> you can see congressman chris van hollen at 6:00 p.m. here on c-span. monday on "washington journal," a look at efforts to get a third-party candidate in all 50 states. then richard norton smith, author and presidential historian on the legacy of george washington and then