span2. the south carolina primary is this saturday. newt gingrich is hosting a town hall meeting and we will have that live at 1:30 eastern here on c-span. we need to cap them, cut them, them back to the states. remove the federal oversight and let the states have the flexibility to deliver these programs. >> we have brought to the forefront -- others have talked about it, they get in office and do nothing about it, but right now it is this liberty movement which is seen as a patriotic movement, individual liberty that is selling to the country and to the world we have had enough of sending our kids and moneygall " to be the police of

the world. it's time to bring them home. >> and candidates are getting the message out and meeting voters. >> wanted to shake your hand. we are so happy. >> thank you. >> you have my vote. >> thank you. >> absolutely not. >> we feel very good about that. conservatives are coalescing around our campaign. that will be good for us in south carolina and going forward. if >> find more video on c- span.org. >> president barack obama meets at the white house today with the king of jordan. he has been hosting talks between israeli and palestinian negotiators, the king. he says progress is being made in baby steps. the latest round of talks ended sunday. the next attempted january 25.

jordan is one of two countries than as a peace treaty with israel. george mitchell spoke at a recent forum hosted by midlantic magazine on the prospects for successful negotiations in the israel-palestine peace. eclectic those open seats and it will warm my heart. i am steven clemons, editor at large of the atlantic. there's a new product we are trying to draw together and consequential people and

consequential ideas. in the apartment with the center for middle east peace tonight in launching an important series we have on our website entitled "is peace possible/' it is an important and consequential look at this ongoing altar in global affairs. honored tonight to have senator george mitchell, convoy in middle east peace. he knows about disney and baseball and knows a lot about a very complicated region. these are meant to be informal. we will get rid of the neckties and jackets eventually, because this really gets hot. this is a cool space. take off your jacket and enjoy. we will have a wonderful senatore after centra mitchell offers remarks. danny abraham, a 1 to recognize

him. waved to the crowd. it is an honor to have him with us. my colleague james bennett is behind the c-span camera. it is great to have c-span with us as well. and my colleague john gould, he basically runs the show. and bob gets a lot of credit. that's not true. both of them are fantastic. it was john's idea, he came to me that we should have the four- part series, that we would like to have something. a great team with robert wexler and others put together tonight's event. thank you all very much for this. let me say a few words about robert wexler. former seven-term congressman from florida, deeply involved in questions about middle east

peace, was recognized as one of the 50 most effective legislators. if we will see if he is one of the 50 most effective ngo directors pretty soon. he retired from congress to do this job that he's taking on. this is a defining challenge for him as it is in my view for the united states. jeffrey goldberg, who has written so much on these issues and covers all the terrain -- i of written much about it. participants in the media, there's hardly an issue that draws out more of us, an energetic five and sometimes a toxic saliva, then this is tru toxic and an energetic

vibe as. as this topic. robert wexler. >> thank you very much to keep steve and everyone atlantic. it is truly a privilege and honor for all of us at the abraham center for middle east peace to be associated with the lantern. two years ago i left a job i truly did love, actually, in the u.s. congress. i did so to join an extraordinary man, a man who is in his heart and every bone in his body an american patriot. but on top of being an american patriot, he is also a zionist. the two combinations together caused him to focus much of his life on one core mission, which is reflected in the mission of they abraham center for middle

east peace. that is to resolve the israeli- palestinian conflict. to do so in terms that respect both sides and have a dignified presentation in terms of the narrative of both peoples. when i joined the center our team -- and i want to plant tony and sarah and yoni, josh, madeleine, dan, and especially speaker krieger who has supported this project. all of us at the center desired to fill a vacuum that we thought existed here in washington and throughout our country. that vacuum is a space where the israeli-palestinian conflict can be presented in an objective fashion where the positions of

both the israelis and palestinians can be outlined from an honest factual point of view. and then on top of the presentation in an objective fashion offer the bridging proposals that so many well- intentioned people had laid out over the years. our multimedia presentations focuses on those core issues. border security, refugees, and jerusalem. to sum it up, we will go to universities. we have already set up nine or 10, starting with princeton and in february we will go through the northeast, down the west coast and ultimately all over the country, we hope. we will go to congress and set up meetings with staff people. we will go to organizations and represent the people -- but the

organizations that represent opinion in the jewish community. we will talk to groups of all different ideological backgrounds and religions. when all is said and done, my personal goal is this, the next time an american president derris to make a speech on the middle east in the israeli- palestinian conflict and that president harrissodearest to suggest that the basis of negotiation should be in the 1967 line, i want the american people to applaud. i don't want whomever that president is to be subjected to a false negative that just does not reflect reality. [applause] having said that, from danny's perspective and for all of us at the center for middle east peace, offer a very quick

observation with respect to tonight's honored guest senator george mitchell. in this town today there is a void of men and women who have the dignity and integrity that all of us expect from our public servants whether they be democrats, republicans, or anything in between. one manre truly is k who at devastates of his private and public career has embodied the kind of character and integrity and dignity that we all expect. if whether you agree with him 100% or 80% treated no one hisees less than 80%, but very purposefulness and his mission that he provides -- most of all what comes out is honesty, in my humble opinion. with that we are truly ended to

senator mitchell for being with us this evening. thank you so much again to the atlantic's for having me. i will show a two-minute click p. >> does it just happened? -- happen? wow. ] ♪♪ [instrumental music} \]

>> there we go. [applause] the next requisition request is around sound and one of those giant screens. but thank you very much. when you go to the web site it really is a terrific expos it when you look at the four pods. i also want to take a moment to recognize my colleague elizabeth baker kepler. we produce 80 events per year and she is responsible for producing it. one of the key participants in this administration and generally throughout his life in dealing with conflict resolution in stressed out circumstances, whether they be in baseball or the congress or seneca, but of course middle east peace. one of the opening acts in the obama administration was asking george mitchell to serve as his envoy for this issue, for

dealing with middle east peace. people offer us some screaming comments. then i will move the podium and jeffrey goldberg will take over and there will have a conversation. after that we will open to the audience and all of you. that is probably when the jackets will come off. it will get harder and we will baton. let me invite senator george mitchell. -- it will get hotter. >> thank you very much, steve. thank you, ladies and gentlemen for your presence. my thanks to the atlantic and to dan abraham and robert wexler for organizing this event. danny has been a friend for many, many years and one of the most ardent and persistent advocates for peace in the middle east. i commend him for that and encourage him to continue and was pleased with some

reservation which i will describe in a moment to accept his invitation to join you this evening. and bob wexler served with great distinction as a member of the alice of representatives for many years. i know danny is glad to have him as we all are. i was at first reluctant to accept danny espinoza invitation to come here. i thought the atlantic, abraham center for middle east peace, people who spend their lives studying this issue, i have always been somewhat intimidated being asked to speak to an audience in which all or most of the members know more about this subject than i do. but then i reflected on my first days in the u.s. senate. i entered the senate under unusual circumstances. i was serving as a federal

district court judge in my home state of maine when one approached our senators ed muskie was appointed secretary of state. there was a lot of speculation in the press about who the governor would appoint to complete his term. my name was not among those mentioned. there was a former governor, a former senator, a former congressman, all of them very well qualified. i had been appointed a federal judge just the year before, and so, no one thought that i was being considered. neither did i.. on the night of before the governor and a city was going to have a press conference of the state capital the media was filled with speculation. and so, like everyone else in maine, i went to bed wondering what the governor would do the next day. late that evening my phone rang. it was the governor calling.

he said i would like you to come down to the state capitol tomorrow at noon so i can announce i will point you to the u.s. senate. a said, gee, governor, this is a really big decision, i've only been a federal judge less than a year, i need time to think about it, i have talked to my family, i have to consult others. he said i will give you one hour. when i protested that the time was inadequate, he insisted. he said, if you say no, i have to find someone else before tomorrow at noon and it's already late night, so i cannot give you more than an hour. i immediately called my three older brothers. i grew up in a very small town in maine. i had three older brothers who were very famous athletes, extremely well known not just in our small town but all over the state and later throughout england. then i came along and i was not as good as an athlete as my

brothers. in fact, i was not as good as anybody else's brother. [laughter] and so, very early in my life i became known in our small town as johnny mitchell's kid one who isn't he any good. i developed an inferiority complex and competitiveness against my brothers. now young man i hung up the phone and called my brother is ostensibly to seek their advice. [laughter] but i confess there was a note of triumphalism in my voice when i form and the governor had wanted me to go to the u.s. senate, i said what do you guys think about that? [laughter]

the responses were predictably negative. my brother johnny said, look, everybody knows you are born loser, nobody can understand how you got to be a federal judge and you surely could not win a statewide election to, so you better stay where you are. my older brother who is somewhat more mature elevated the tone of the discussion, he said let's look kept this from the point of view of the people of maine, using the socratic method, he said are they not entitled to have a qualified person representing them in the senate? and is it not obvious that you are not? after this i hung up the phone, call the governor, and i said, governor, i don't need an hour. i already have all the reassurance i need a liability to serve in this position. i accept. and then i went down to the state capital the next day. the governor announced the appointment and i got on a plane and flew to washington.

i went up to the senate. i was sworn in. the ceremony took about 10 seconds. if you turned aside, you missed it. a young man came up to me and introduced himself as senator ed muskie's former administrative assistant and now he was mine. he read off a list of things that i was doing amanda that day. then he said we have a very interesting invitation for your. i said what it? he said there are 3000 certified public accountants meeting in washington and they just called and asked if you would come down to the washington hilton hotel and speak at their annual convention and delivered the keynote address tonight. i said, gosh, that's amazing. until just yesterday i myself did not know i would be here. how these guys had the foresight to hold this position

open for me. they had four last-minute cancellations. they said that they heard about my swearing in and thought i would be the only member of congress who did not have been adding to do tonight. [laughter] i said, ok, what do they want me to talk about? he said, the tax code. i said, you want me to go tell 3000 certified public accountants what is in the tax code? i said, i cannot do that. and this young man looked at me with a voice trip -- driving with sarcasm and condescension and said, "you are now a united states senator. you will regularly be called upon to speak in public on subjects you know nothing about. so if you want to be a good senator, you better get started right now. nightown there to a and tell them what is in the tax

code." so i went down there and told them. and here i am today telling you experts on the middle east what is going on there. [laughter] i will go on until i get questions from people that really know. but i did want to make a few remarks. i was told i am limited to 10 minutes. that is tough for a former u.s. senator. if the senate has a rule of unlimited debate, you know. as a consequence, after many years there including several years as senate majority leader, had the dubious ability and skill to be booked to of speak at length on any subject with no prior notice, usually neither possessing more conveying any knowledge. i have been able to fill the blanks in any speaking program

that has existed in washington for many years. i'm not going to do that tonight. i will try to stick to the time limit that has been imposed on me. but of necessity, therefore, i can only speak briefly on the subjects and in a general way. there will be many subjects that will be of interest to you that i will not be able to cover in these few comments, but i will take questions later from you and from the moderators. but there are a few thoughts that i have that i want to express directly. that is the reason why i asked. as we all know, the conflict is deeply rooted in history. it involves a highly emotional issues. religion, national identity, territorial competition. right now pessimism is widespread.

there are many, many reasons for all of us to be skeptical about the prospects for success. the conflict has gone on for so long, it has had such destructive effects, the level of mistrust and hostility on both sides is so high that many and perhaps most here in our country and elsewhere regards it as unsolvable. but i believe the perceived of peace is so important that it demands our maximum effort no matter the difficulties, no matter the setbacks. -- the pursuit of peace. the key to success is really easy to state but exceptionally difficult to achieve. it is the mutual commitment of israel and the palestinians and active participation of the u.s. government with the support and assistance of many other governments and institutions who

can and want to help. they must address the task which is to reconcile the palestinian goal of a viable contiguous sovereign and independent state based on the 1967 lines with agreed swaps. and the israeli goal of a jewish state with secure and recognized and defensible borders. that should not been beyond the ability of political leaders if they have the will to do it. in january of 2009 just before leaving office president bush spoke in jerusalem. --and a part of which he said i will quote, " the point of departure for permanent

status negotiations is clear. there should be an end to the occupation that began in 1967. the agreement must establish palestine as the homeland for the palestinian people just as israel is a homeland for the jewish people. these negotiations must insure that israel has secured, recognized, an indefensible borders. and they must ensure that the state of palestine is viable, contiguous, sovereign, and independent. it is vital that each side understands that satisfying the other's fundamental objectives is key to a successful agreement. security for israel and liability for the palestinian state are in the mutual interest of both parties."\ stated another way, neither

israel nor the palestinians can achieve their principal objective by denying to the other its principal objective. the palestinians are not going to get a state until the people of this will have a reasonable and sustainable degree of security. but i don't believe they can that that unless and until the palestinians get a state. there are risks to all courses of action. there is no course either side can take which is fully assured success and free of risk. the question is one of measuring possible benefits and potential risks.

on taking office in 2009 president obama publicly reaffirmed the policy that president bush had set forth. it seemed then in early 2009 that the culture of peace, which had been so carefully nurtured during the oslo process, had largely dissipated, replaced by a sense of futility, and despair, the inevitability of conflict. the fighting in gaza had just ended, the palestinians were deeply divided, and the uncertainty of the israeli election lay just ahead. few people and believed there was any chance of restarting peace negotiations, let alone achieving a peaceful end to the conflict. unfortunately, the three years later that remains largely the case.

a solution cannot be imposed externally. the parties themselves must negotiate directly with the active and sustained support of the united states. this will require of them compromise and flexibility and most of all it will require leadership. the quartet is now trying to get israel and the palestinian authority back to the negotiating table. the recent meetings in jordan sponsored by that government in coordination with the quartet represent a step in the right direction. the parties should be encouraged to continue those meetings and we in the united states should do all we can to facilitate a continuing and meaningful direct exchange of views between the parties. as difficult as it seems and i'm

not responding to the question raised in the video, i still believe that this conflict can be ended. i believe that in part because while i recognize that there will be enormous political pain on both sides from negotiating an agreement, but that pain will in fact be much less than what they will aendure if they don't negotiate an agreement. there is a lull which has created a false sense of comfort and security. but if history is any guide, that will not last. and if the conflict resumes and continues, both israelis and palestinians could face a future filled with uncertainty and anxiety. that includes, of course, what we hope and pray will not curb,

but we must consider, and that is the possibility of renewed violence. there are other dangers. let me mention just a few of them. time does not permit more. for the israelis, demography. there are now between 5 million and three-quarters million and 6 million jews living in area between the jordan river and the mediterranean city. in the same space there are about 5.5 million arabs, including israeli arabs and palestinians in the west bank and gaza. over all, the arab birth rate is much higher and within a few years they will be the majority. some demographic predictions published yesterday suggest the populations will be about equal in 2015 and by the year 2020 they will be nearly a half-

million more arabs than jews in that region. israel will then have to choose between being a jewish state and a democratic state. it cannot be both once the two -- the two-state solution is lost. the second challenge is technology. the barrier was built and has largely succeeded in keeping suicide bombers out. but the real threat to israel now comes from rockets. hamas has thousands. they are crude, lacking in guidance and have destructive power. they create fear and anxiety and some damage. no one can doubt that over time without any change they will have more and better rockets. on israel posing oregon border

has a long as tens of thousands of them. northern border. -- hesbollah has tens of thousands of them. destructive power. and iran now has rockets that can reach israel when launched from iran. they don't yet have the precision needed to strike specific military targets, but they could cause enormous destruction in cities. the united states is fully committed to israel posed a security. that - committed to israel's security. that will go on. to honor that we have provided financial and military support to israel and most recently we

have insisted on the development of an effective anti-missile system. last week the u.s. and israel announced the largest ever joint military exercise focused on missile defense. but it is not known and never will be known until the event itself -- whether that or any system could intercept the potentially large number of missiles that might be launched in an all-out conflict. existence would be threatened and could face the possibility of severe damage at the least. the third challenge is in isolation. israel's support in the u.s. is very strong especially in congress. but is declining elsewhere. a short time ago israel had good relations with the two major powers in the region, turkey and egypt. but the relationship with turkey is deteriorating. and with egypt it is threatened.

we all know what has happened in international forums in recent years with very lopsided votes on these issues. let me conclude with a few comments about the palestinians who also face very serious problems. not the least of which is the indefinite continuation of the occupation under which they have not had the right to govern themselves for many, many decades. in 1948 the united nations proposed a plan to petition -- partitioned area and create two states. israel accepted. the arabs rejected. and the first of several wars began, all them won by an increasingly strong as well. every sensible an arab leader today would gladly accept that 1948 plan if it or still

available. but it is not still applicable and never again will be. since then the plans offered to the palestinians have been less attractive. and they have been rejected as well. i told both chairman arafat and president mahmoud abbas directly but there's no evidence, none whatsoever, to suggest that the offers are going to get any better in the future. to the contrary, all of the evidence points exactly the opposite direction. they have got to sit down and participate in the negotiations and get the best deal they can even though it is not 100% of what they want. they have to bring the

occupation to an end and get there on stage and then build on it. just as israel has done since it was established. under the outstanding leadership of the prime minister, the palestinians have demonstrated that they can do it, by laying the foundation and building the institutions needed for a viable, independent state. unfortunately, while that state- building efforts must continue, it cannot be sustained in absence of any progress on the political side. they are inextricably linked. in order for there to be progress on one, there must be progress on both. it is a daunting challenge to rebuild trust not only between the political leaders but between the two peoples with a long and bitter history of conflict. but they must find a way to do it, to renew hope, to continue the search for peace, and we

must persevere in helping them. thank you very much for having me. i would be pleased now to respond to questions. thank you. >> thank you, sir. my colleague, national correspondent [unintelligible] [inaudible]

>> very quickly, thank you to dan abraham and robert wexler for helping to convene this. james bennett, of course. steven clemons. steve is one of the only people in washington who can get aipac and the center for american progress in the same room. so congratulations on that. senator mitchell, i want to

start somewhat narrowly and then broaden out. let me start with a couple of events at the beginning of your tenure as envoy. i want to talk about the settlement freeze. but start, if you could, with annapolis. condoleezza rice in her latest book suggested that the obama administration missed an opportunity, that the previous prime minister of is well had put a remarkably expensive offer on the table before the palestinians and that the obama administration could have built on that. instead be an obama administration receptacle of commentaries the past, demanded a settlement freeze. what happened? why did annapolis paul white why? that offer completely fall away? >> it is a matter of well- established public record.

i went to the region just a few days after my appointment. it was in the midst of the israeli election campaign, which was held on february 10, 2009. about two weeks before the election, olmert made public the details of the offer that we had made during the annapolis process. this was in his discussions with abbas. immediately, the major majoromert, -- the major candidates to succeed olmert rejected olmert's proposal. prime minister benjamin netanyahu said publicly several times that he did not agree with the proposal, was not bound by

them, rejected them completely, and would not accept them as the basis for further discussion. he told me that personally, directly. he said it publicly. numerous newspaper articles in that time reported that. you can agree or disagree with the prime minister's decision, but there can be no dispute about the fact that he has been totally consistent publicly and privately and in that position and that remains the position of his government to this day. so the suggestion, the statement made not testify former secretary of state condoleezza rice, but many others, columnists and others, that somehow obama simply ignored

this great opportunity is incorrect. i discussed it with him. it was rejected. it was a matter of public record. it was not possible to pick up the negotiations with a left off, because prime minister benjamin netanyahu said he would not do so. >> let me talk about the settlement freeze for second. that is one of the most perplexing episodes in the last three years. a demand was made to freeze settlements, but there did not seem to be a plan in place for the moment when benjamin netanyahu rejected the demand for settlement. there was a temporary moratorium, but the israelis never met the u.s. demand. at one point you hinted that there could conceivably be punishment for not adhering to that demand. you brought up the issue of loan guarantees. but almost immediately the state department backtracked and said we are talking about historical

context. why did the administration go publicly with a demand for settlement freeze without having a back a plan when netanyahu could not fulfil that? and why did the industry task for the settlement freeze given the limitations of netanyahu? >> let me correct your comment about my statement on that i hinted. the only statement i ever made on that was on the charlie rose show. he asked me if there are any actions the u.s. could take legally in the circumstance. i describe what those actions were and then i said i do not favor such a course of action. >> the state department did come back and say he really did not favor that course of action? >> i don't recall that. it was not necessary.

my position was that i do not favor that. and so, trying hard to respond earnestly to a journalist's question, i answered the questions above the state of law and made clear i did not support it. now let me go back to your central question. first, the settlement freeze. every american administration that has been in office since 1967, president, secretary of state, administration, has opposed the policy and actions of the government of israel with respectable settlements. without exception. every republican in ministration, every democratic administration. in the road map proposed by president bush there is an explicit reference to a full settlement freeze. so president obama proposed a

settlement freeze was not proposing anything new. it was a position taken by every prior american president, democrat or republican, over the preceding 43 years. second, the real mistake that we made and for which we bear responsibility is that we did not make clear that the proposal was one in isolation to the israelis as opposed to in the context of requests made of all pre relevant parties, which were made at the same time. the israelis, palestinians, and the other arab states. second, we did not make clear as we should have that none of those were preconditions to

negotiations but where an effort to establish a context within which negotiations could occur and had a reasonable chance of success. recall the gaza conflict had just ended. the emotions were extraordinarily high. i traveled throughout the region several times before prime minister netanyahu took office. i met with the leaders of 14 arab countries. almost without exception there similar demand made by that the outset with great emphasis was there has to be a settlement freeze before there can be any consideration of discussions. think about what the reaction would've been had president obama become the first american president not to favor a settlement freeze. >> --

>> let me finish my answer. so we proposed this. we made demands of the arabs. the president said the arabs were -- the era of peace and deceptive -- arab peace initiative. it provides the end of a series of events there would be normal relations between israel and the arab states. if what the president asked was that the arab states take steps not to agree to fully normalise but to take limited initial steps in that direction at the same time that the israelis were freezing and at the same time the palestinians were acting in a way that we thought they should to make the negotiations more conducive. there was not a positive response from either side. we did not get the results we wanted. we did get a 10-month -- i don't

want to call it a freeze -- a 10-month moratorium on new housing construction starts on the west bank, which was less than what we asked for, less than what the palestinians wanted, but was more than any government of israel had ever done on that subject. it was a significant action, which i believe the palestinians should have responded to by getting into the negotiations earlier. >> one more thing, just because i am confused still. mahmoud abbas said it was obama was suggested a full settlement freeze. i said, ok, i accept. after that he came down with a ladder and removed the ladder and said to me jump. three times he did that. why was abu mazen under it this impression? >> statement was made in 2011 and it was an inaccurate

description of what occurred in 2009. it was a mistaken recollection of what occurred. because when i went over to the region in january, perry, and march of 2009 i met with president a boss, his team, and all the arab countries. and they said to me we need a settlement freeze before we can never consider going back to negotiations. -- i met with president mahmoud abbas. that is what happened. >> do you think that settlements are the root cause of the conflict? >> there's no single root cause. >> do you think settlements are an important cause? >> they are an important part of the problem. >> described those various rouots. >> they are in the video. [laughter] there's a problem of borders,

disagreement on territory, jerusalem is an intensely powerful and emotional issue on both sides. borders and refugees and settlements are all palestinian issues. jerusalem is a muslim issue. it does not just take the consent of the palestinians to make an agreement on jerusalem. it takes consent and approval of many others in the world of islam. and so, it is a highly emotional issue. i think it is a profound error d -- to try to say this one is number one and this one is numbered two peer they are all important and have to be resolved. but with respect to settlements, let me make a point now, i negotiated with the israelis.

they would not fully freeze all settlement construction. they did agree, as i said earlier, to halt new housing construction starts for 10 months. that was very significant. it meant that for the first time in 40 years when a building was finished a new one was not started. and so, had it continued over a longer amount of time, they would have come a time when there would've been no construction, because every building would of been completed. when we negotiated that agreement and announced this, the palestinians rejected it. they described it as worse than useless. that was the phrase they used. nine months later when they finally entered negotiations

they said extension of the moratorium is indispensable. so in nine months what was described as < useless -- less than useless was transformed indispensablen. we got one month. less than a month. that was just not enough time to gain traction and to have the parties interested in continuing the process. >> let me ask about demography. you brought this up earlier. you spoken some about the democratic challenge, but you did not invoke the word apartheid. do you believe israel is on the road to becoming an apartheid state? do you believe in the west bank right now apartheid-like

conditions prevail? >> the issue and conflict is complex enough without the use of inflammatory words and phrases, whose only result is to create aggravation and hostility. if you can say something two ways and one way is bound to antagonize your opponent and the other gets your point across without antagonizing the upon it, why do you choose the inflammatory way if you really do want to accommodate reaching an agreement? you don't settle conflicts by trying to figure out ways and complicated words to do it. i mean no offense to you, jeffrey. we never met. you are a good journalist. but the press likes

sensationalism and conflict. >> i deny that. >> when i was senate majority leader we were negotiating a very tough issue and i spent months negotiating with senator bob dole and senate republicans and we on the cusp of getting the bill done. the washington post ran a very tough story focused on the 8% if that we had not done. they ignored the 92%. when i complained to the reporter he said to me, senator, you have never seen a newspaper headline that reads "two million commuters made it safely and to work today, but you have read many headlines that said two cars collided and six people were killed, it is what makes news." i described the situation in a way that i thought was factually accurate and denied arouse people's hostility. we all ought to be thinking about that. >> let me ask this. do you believe that in certain

parts of the west bank on certain days and a system of institutionalized discrimination against certain ethnic group prevails? [laughter] i want to know how far down the road you think is will has gone on this question. and how reversible is what you have seen on the west bank's? >> i think that is the point. i think it is reversible. i don't believe that borders are the most difficult issue to resolve. once you resolve borders you resolve the settlements issue. that has been my plea to the palestinians. they keep saying that we want a freeze. the united states favors a freeze. i've made that clear in remarks earlier. president bush explicitly called for a freeze. but it is not forthcoming. so the way to deal with it, i

thought, sensibly, was to persuade the israelis to have no housing starts and during that time have an agreement of borders that says here is israel and here is palestine and the israelis can build what they want in israel and the palestinians can build what they wanted palestine and then you don't have this issue. i believe that it can be resolved. >> if it is the u.s. position that settlements are counterproductive or illegal, why does the u.s. not simply say to the israelis and reassess the u.s. spent to hundred $50 million this year on infrastructure for settlements, so we are going to dock that from your aid package? if you had that two years ago with prime minister netanyahu, would you have gotten somewhere? >> we do have that ability under the law. george w. bush was the last president to impose the

application of that law. that created a deduction from the amount available to ensure israeli guarantees for israeli housing. the israelis have not needed to make a claim on it, so it is lost its potency. it is symbolic now. it has no substantial effect. i do not i do not believe it would have had any significant effect and altering the israeli activity. and all the time i was in the region, for many arabs, there is a simple solution. the united states cut off all funding. they will have to do what we want. for the israelis, it is also an easy solution. in relative terms, as many israelis have noted, the palestinians are much more dependent than israelis. the public perception is the

contrary. in my view, i do not think that works. i do not think it works when you're dealing with this. you need a more positive case of appealing to self-interest. i think self interest can be identified an appeal to a positive way. we did not succeed. let's face it. we have 10 presidents. but i think it can be done and they're really believe it will be at some point in the near future. >> let me ask you to a final questions. want to get iran also. i am going to in both speaker gingrich in this. have you met many leaders to

believe that the israelis have a natural right to that part of palestine they currently possess? i read the palestinian press all the time. there is an overwhelming message that the israelis have no legitimate right. how important, we understand what settlements due to the palestinian psychology, how important is the jewish national quality to making peace? >> there were many others. i confess that i have never had a discussion in which we discuss precisely the natural right of israelis. i can tell you this.

i believe they understand and accept it. they may not like it, but i think they accept the reality that israel is there. it is going to stay there. it is not going anywhere. we want to have been over for dinner. in terms of less live in peace, you there be here. >> if you are a palestinian, would you accept 22% as your final permanent deal? >> the answer can only from palestinians. there are other issues that are so important.

it must come from israelis. i was always conscious of the fact i spent five years and on could northern ireland and to in the middle east. i was always conscious of the fact that when it was over i am going home and they are staying here. they have to make those decisions. what we have to do is to help create the context in which to make those decisions. i believe that no other entity than the united states. it will help them accomplish at that task. >> as president obama like israel? >> i think he does.

i think he is very determined, absolutely determined to protect israel and to make certain that the american commitment is maintained. it implies more than the words themselves. let me respond intelligence cooperation is the best it has ever been. they announced the largest ever exercise is focused on missile defense. that is the root problem. president obama authorized over $200 million to assist in a more rapid development and deployment of the anti-missile system. i have a very good relationship

with israeli leaders. i think that the president is determined to protect and serve that relationship. >> very quickly if you can, you've got to know the leaders. describe the most likable characteristic of netanyahu. >> prime minister netanyahu is strong. he is consistent. he told me is very sincere about this. many many times when i met with prime minister netanyahu he said "i am sincere. i want peace." i believed him. president of abbas asked me the same thing. are we done?

i think they're both the serious. that is not the question. everybody wants peace on their terms. the difficulty is achieving peace on terms that can be acceptable to the other side. why would to get close to 100 approval? it be said to the palestinians and you want peace, people would say of course. likeublic is they're just the public is here. convey able to hold and contradictory views at the same time. they say that we want peace. we wanted on our terms. the challenge and the task of

leadership is to reconcile those two conflicting demands. we can do it in a way that can make it possible for the other side to accept it. >> it is relevant of the current debate. when i was senate majority leader, the first president bush was in office. we have a terrific fight over the budget. we spent months and even went to the air force base and isolated ourselves in the hope that isolation went into is compromise. it did not. i used to go back to maine every weekend. there is a large crowd. i did not give speeches. i just a questions. he delivered a scathing

denunciation of me, saying how there's they were at my behavior. it was too much fighting. why not me get down there and settle it with him? the crowd reacted with a huge thunderous ovation endorsing his repudiation of me? what are you guys are you about? he we get up and say you represent us. palestinians and israelis want peace. but they want to do it anyway this satisfy both.

>> but we're talking about the way to go forward, on the question of settlements, it was a traumatic experiment. will this be sustainable? which he bought 80,000 settlers. you have done some of the best reporting on it. what situation would have to obtain israelis to countenance political that is difficult. >> the figure that you cited is based upon an assumed percentage of exchanges. it might be higher. it might be lower. it depends on what the

negotiated ingredient is. i am not an expert on the subject. there are many of them in israel. as numerous studies made of the principal motivation that has brought different types of sellers to different places, it was a unilateral decision. there was no consultation or agreement with the palestinians with respect to it. there was no overarching agreement which the government of israel could point to and say here is what we got out of this. we do have to endorse some pain

but there are significant benefits. there is nothing comparable then. i am not certain that it is really the kind of apples and oranges comparison. i do not think -- certainly i said nothing. i do not think any responsible person would suggest that this would somehow be easy or anything other than extremely difficult with careful planning and and with a lot of assistance being provided by the united states and other supporters of israel. oron't think that the gaza lebanon example are relevant. in both of those cases, their unilateral without consultation. there is not in a demonstrable benefit i can tell you from my

own experience elsewhere if you're going to ask a government in a very vibrant democratic society where everybody speaks in public if you're going to ask people to undertake a very painful course of action, it is far more difficult to do it in the absence of an overarching program in which you can say we have to do a be. -- do a, b, and c. but we're getting xyz in return. he have some give and take. >> this is really change in the last several years. you have a foreign minister that is your cannot dispatch to washington is no one will meet him. you have in the settlements of much of the officer that lives

there. i want to press you on this. you are not talking about the israel 20 are 30 years ago. you're talking about asking an army to evacuate their own parents. talk about that, dealing with the army. it is hard. you did deal with the army. it seems very hard to reverse this. >> i met with them many times. my view is that we have the right to choose our officials. they have a right to choose their officials. we are going to talk to whoever it is that they have.

you say the israeli society is changing. of course it is changing. every society in every area changes. with someone that came to the united states not say is that american politics changing? they decided to be static. the plo started as a secular society. it is, it has made some genes because of the dynamic changes. yes, it is more difficult. that is not a reason not to do things. if they are the right things to do it and if they provide an

overall benefit to the society. that is the important part. it is truly moving. 60 years is remarkable. if you believe in the security, you have to accept the reality that one in the more important things that you can do to ensure that security is to make peace with the palestinians. there are other issues in the region that he said he will get to. i am saying that it would be difficult but if the reward or

sufficient, if the justification more enough to persuade the people that it was worth doing it, yet the possibility of getting it done. >> we apologize. we have time for two more questions. i told many of you you get a question so i will let him pick them and you can blame him. >> i will just negotiate this. >> i do not recall that my newspaper has denied the system said israel. i was there when you came in of august 2010. it was by september 2011. does mr. obama white the

palestinians that he spoke very eloquently. he did not mention the palestinians. >> my answer is yes, i believe that the president is fully committed at a palestinian state. yes said that many times. president bush said the same thing many times. i believe it is the united states policy. i do not accept the argument made by many in the region that the united states is incapable of serving as an arbiter our mediator for the intervening party. it is so biased.

its history that the united states and israel are close. we are committed in to israel's security and existence behind secure borders. it is precisely because we believe that is real security will be enhanced by an agreement that we think that there ought to be a palestinian state along with the belief that the palestinian people are entitled to self governance as are people everywhere, as our declaration of independence states. the united states or did i cannot speak for the president's -- i believe that he is fully committed to a palestinian state. >> looking ahead to the coming

year, there are macro issues. can anything be done by the palestinians, israelis, and us to stabilize the situation? i believe it is a possibility. >> i do believe that there can be steps taken. the party have been. it is a remarkable achievements. you look at what has gone on in the previous 30 years. the organizing and the funding and the training of the palestinian security forces, which has resulted and the establishment of stability and

security where it did not exist, it has produced a secondary economic results in terms of the growth of the economy. it has encouraged many of us to provide assistance to those are reluctant to do so. i think there are intermediate steps which could be taken which we proposed. not to get to complicated, as you know, the palestinian territories are divided and authority between areas that are administered entirely by the palestinians and those other entirely by israelis and those of mixed authority. one of the ones we have noticed is a capacity for self governance to extend

palestinian authority in two areas --into areas b and c, particularly to the extent it can exist and economic growth and development. economic factors is very presence. i think there is quite a bit more that can be done. there are numerous steps that can be taken to help prevent the outbreak that we very do not one want to have them. >> correct me if i am wrong, has netanyahu ever put down a proposal on the borders and

security and anything? hour of pressure is that the palestinians have been quite forthcoming. if that is the case, why is that the case? will there ever be an american bridging proposal that they will say is reasonable? >> mr. netanyahu did in fact make a substantive proposal on security. he did not make proposals on the other issues that seem mentioned. he assumes and anticipated this. it was my intention to encourage discussion on other

agenda items that palestinians have prevented their views on. because of the failure to extend it. >> bridging proposals? >> we did not make any because there is not significant engagement. >> you have to have two pieces of land. >> there's the thing to bridge at the time. i just want to say we made it very clear to both sides that if it continues that we will be prepared when necessary and appropriate. it did not reach that stage for

reasons i said earlier. >> you mentioned yourself that you spent five years of northern ireland's. you are clearly invested in this and even more. was it a lack of support from the obama administration? >> you got caught off. >> i said to the president and secretary of state when they ask me to take this position, that i was willing and able to go. precisely because i have been there for five years. i said to the president i cannot do five years here. i cannot commit to you to even a full presidential term. he said what will you do? i committed to two years.

>> we're going to do something unusual. we are right at the end. you have a 32 second comments and if you go over a turn off the microphone. as rapidly as you can, then we will finish. we will see if it works. >> i am actually lived in tel aviv and my concern is the shift in democratic values. there are a number of increasing bills. one of the biggest limitations and progressing are those that

prevent a prime minister from taking a significant lead. are you concerned? >> when i was in the state department, there were 20,000 israeli settlers. people back then in cia and state department were writing the annexation that no good could come of this. the senior levels did not want to hear about it. it was a political bargaining chip. now have over five and a thousand settlers. the road map came from the main parts. palestinians did the security part. my comment is why do we think anybody is going to trust us in future? >> do you expect me to answer

this question and 30 seconds? >> you touch quickly on is really isolation. can you put this in a bigger range of? is a complicated? is it a priority? most of the leaders are no longer there. >> why should anybody trust the process and democracy and israel? >> you have 43 seconds. >> you get more time. >> thank you. >> you can intimidate me in 30 seconds. the first one was the arab spring initiative.

it is human nature when there is turbulence and uncertainty and anxiety to pause, hesitates hunker down and not take any dramatic steps. it is very clear that both the government of israel and the palestinian authority have been affected by that. it is a pillar of both of their policies with the government. that is gone. it is natural that they will want to pull back. it would be on natural otherwise. we have to understand that even as we encourage them to take steps, with respect to the arab spring, here are a few points. it takes a long time. i know all the press operates

under a deadline. resolutions deny. -- do not. in our own country, eight years elapsed. it was a much less complicated time than the current situation in the middle east. secondly, there's almost an night and day in thinking. we said something has to do better. history is full of examples of very bad government. it will replace the other governments. let's not hold the arabs and air springs to standards that no one else has met. we hope it turns out the right way. i think it will take a long time. there will be successes revolutions. it can follow up less severe. it i think some will turn out

well. some will turn out not well. it will be a huge task for us in terms of our policy. >> in fairness, i depose the question. palestinians did there. they did it on the west bank. they have not done that in gaza. the israelis would dispute the premise of your question. i am not disagreeing with the. -- with you. change. this deals with the issue. that is the way to get it done. i think it can be done. i do believe sincerely.

i had a whole staff of proposed maps. you're one of the few that did not send me. i wish you would. at the complete my collection. it is what the border should be. it can be done. i leave that to the israelis. it is a very difficult issue. i try very hard not to interpose myself into what our internal matters. let him have is a. -- his say. >> [inaudible] >> i believe in democracy. i support democracy. i also think that the right to self-government means what it says. self-government. people decide their futures.

this goes back to the arab spring. that is what is most powerful, and that it is entirely indigenous. a came from with in. -- it came from within. it demonstrated a longing and capacity that many thought and not exist or had been suppressed. it is not for the united states to tell the people of israel how to run their affairs. it is not for the united states to do this. we should encourage them. we should particularly praise democracy because they believe and it. in the end, they have to decide. >> no. let you go to dinner. >> thank you. >> just addressed to sides of the same question. what are the consequences for the middle east and for the

peace process in particular of a nuclear arms in iran? what you think the results are of a pre-emptive strike of the united states to delay them from developing nuclear weapons? >> i will enter them in reverse order. -- answer them in reverse order. there's no benefit to taking them off the table. i do not think anyone here is a proponent of a pre-emptive strike has so far made a sufficient case to justify it at this time. i think there are too many imponderables in terms of uncertainty about a sad is that they are in. or what the effect would be. secretary of defense gates who is respected in and out of the

u.s. has said emphatically that we could not assure the full termination of their program. the best we could do is set it back. what about the next day? one thing we have found that it is hard to get out of wars. you have to ask yourself what will happen on the second day? iran now possesses rockets. they have gone from liquid steel to solid fuel that can reach israel from iran. if you think that they are unstable enough to launch a possible first nuclear strike on israel, you certainly have to believe that they will launch a massive missile attack if they themselves were attack in retaliation, not nuclear but on mass. -- but a massive missile attack. they could do tremendous damage. i do not think the cases were made. the one issue which you did not

ask which i think it's also a sufficient importance and danger is if i rank it in nuclear- -- if iran gets nuclear weapons not only will it be a huge destabilizing force in region and be a setback for the peace project, it will make a difficult task harder. it causes disintegration of the non-proliferation regime. there are now nine countries with nuclear weapons. they're trying to make it 10. there are many more in number with the capacity to do it. they have refrained from doing so. the break in the dam could be them getting weapons. what did they do? what would saudia arabia do?

once that happened, it is not difficult to conceive, you discussed hal societies change. their societies where it has been inconceivable that they would develop nuclear weapons even though they have the capacity that a movement would emerge on the grounds of we have to get our weapons. one of the things about nuclear-weapons is that in the countries that have nuclear weapons, most of the people think their country should have them. they just don't think other should. most americans think the united states should have them. did you ask questions of chinese are french or british, you get pretty much the same answer. it would be a matter of time. until the plug would be pulled.

we would confront far more dangerous things than exist today. >> what a happy note. >> before i think senator mitchell and the others, i want to encourage all of you who are watching on c-span and the c- span viewers for being with us to go to the web site at theatlantic.com. look at the series and what has been laid out. we all owe thanks to the designer of the project. i do not know where you are. thank you so much. you're here somewhere. i look forward to meeting you. i look forward to the team that brought this together. a big round of applause for senator mitchell. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012]

>> king of the lot of jordan has been posting talks between negotiators. he is meeting with president obama this afternoon at the white house and says progress is being made. the latest round of talks ended sunday, and the next attempt is january 25. jordan has a peace treaty with israel. the king is meeting with the president today to discuss strategy. on capitol hill, a new news poll finds that 84% of americans

disapproved of the job that congress is doing. the house meets today to start the second session of the 112 congress. they will be voting on a sergeant of arms tonight, and tomorrow the request to raise the federal debt limit. we will have live coverage of the debate here on c-span. mares from across the country are at the capitol for their annual conference. a number of them will be meeting to talk about jobs and the economy. they will be sharing solutions at noon eastern on c-span2. south carolina presidential primary is on saturday. newt gingrich is back on the campaign trail and hosting a town hall meeting. we will have that at 1:30 p.m. eastern. coverage from south carolina, all of the results for you on saturday. you can follow it on c-span.org.

the maine caucus is the same week. our coverage will follow it all. the supreme court heard an emergency challenged last week from texas republicans to a redistricting map for the 2012 election. last year, the gop-controlled legislature approved maps for the district. democrats and minority groups say it disenfranchised minority voters. the district court will decide whether the read-drawn map is constitutional. here is the oral argument. it is about an hour. >> we will hear argument in the case, perry v. perez. mr. clement?

>> the judicial maps drawn here are truly remarkable. they reflect the reality that the district court below lost sight of first principles. the court repeatedly invoked the principle that these were only interim maps, but that obscures the reality that the accord has the authority to draw up an election map, one of the most powerful tools only if it is identifying specific statutory or constitutional violations or a likelihood thereof. >> section 5 says you cannot draw new maps unless they have been cleared. the only thing that exists are old maps until you get the pre- clearance. i don't see how we can give deference to an enacted, new map give iton 5 says don't

affect until it is been pre- cleared. >> section 5 is clear that the new map drawn by the legislature cannot take effect of their own force. that does not answer the question of whether a judge, when having to impose a remedial map to address a one-person, one-boat problem with the bench men can look to the new maps which can also remedy that the problem for guidance in this court -- >> you are asking more than guidance. you are asking for different. you say they have to start with the new map even though that matt has not been approved. >> that is right, your honor. >> the old maps had been approved. >> in fairness, we are asking for it to be used as a starting

point for drawing the new map. >> doesn't that turned section 5 on its head? >> the obligation to go to the pre-clearance court or the attorney general remains in flux. the only question is what is going to inform. the district court's exercise authority to remedy the problem with the remedial benchmark claims. this score from the very beginning of its cases has emphasized the need to look for legislative guidance in order to inform the judicial exercise of solving that reapportionment problem and the need to look to the new maps is i think most acute with the congressional maps because the benchmark is a fine map but it is 432 c it. the legislature of texas has spoken as to how it would like to divide the new allocation up.

it seems to be quite odd that the court would ignore that judgment when it could look to that -- >> it took it into account along with other plans. mr. clement, suppose the d.c. court which has exclusive authority over pre-clearance denies pre-clearance. suppose we accept your provision, and then the district court says these plans do not meet the section 5 requirements. what happens if we use the texas plan that has not been pre- cleared? >> as a practical matter, i

suppose at that point, appellants would go to the court in texas and say you need to revise your interim maps once again. since the premise for the court drawing it into romance is that time is of the essence and we cannot wait any longer, the texas court may deny that notion or grant that notion. what they do think it is particularly an ominous is let's suppose that the d.c. court does deny pre-clearance, at that point, it is common ground that the legislatively enacted plan even though deny pre-clearance would be something that the texas court would have to defer to. the oddity of the other side -- >> i do not see how it is basically up -- that was plan. there was two contiguous districts.

the attorney general said the rest of it was ok. the plans are opposed. >> it is true that the justice department raises an objection to the plans as a whole but it takes its force from the way particular districts are being drawn. it seems to me likely -- our position is to grant pre- clearance. it would be made clear that you would give the texas -- the texas court would give deference to the legislative plan. the anomaly is to give less deference to a plan when pre- clearance is. then when pre-clearance is denied. >> let's suppose that the district court in washington moves expeditiously.

are there problems in postponing the texas primary so that the plan that is to be used does not have to be formulated until after the district court in washington has ruled? texas has a very early primary. some states have them in the fall. the latest presidential primary is at the end of june. why can this not be pushed back? wouldn't that eliminates a lot of the problems? >> two answers. as a practical matter, all of the affected entities have agreed on the ability to move the primary back to april on the assumption that a map could be in place by february 1. the primary has been moved from march to april already so i cannot tell you that it is impossible to move it again.

the question becomes -- texas has made its own determination that it wants to have a early primary. it had that in place since 1988. how much do you want to interfere with that judgment? >> it is either the plan enacted by the texas legislature or the plan that is been drawn up by the court, yes, that could be resolved rather quickly. what if neither of those is fully acceptable? is it practicable to have the primary on the date that has been agreed on? if not, would you just prefer to limit us to those two possibilities? or would texas entertain the possibility of moving the primary back? >> texas wants the court the opportunity to get this right. we think the decision below is

wrong. we think it is important for this court to send a signal that would provide relief to future situations where this aorse. >> just one more question about pre-clearance. assume that the three-judge district court in columbia find some problems with two or three of the districts in the congressional plan. does it say there are problems with these district board does it give guidance and say we would give pre-clearance if you made the following changes? in other words, does it give you a road map? how do these decisions work? that's what i'm asking. >> well, i don't think there is a road map for the extent to which they give a road map. i think there are two things that are crystal clear. one is that when the d.c. authority, be it the attorney general or the court denies preclearance, it denies preclearance. the plan is not precleared. there is no such thing as preclearance in part or partial preclearance. as the justice department puts it, it doesn't work like a line item veto. now, that's not to say -- and

here's the second point. that's not to say that the court doesn't provide reasoning for its decision or the attorney general. and that's why in upham, for example, that the court -- this court knew that the objections were to two particular districts, even though the effect in upham was to not preclear the whole plan. and it seems to me the mistake of the district court is it effectively treats the unprecleared plan as a nullity. and that's the exact word that judge johnson used in the lower court opinion in upham. and this court reversed and it said -- no, you don't ignore that, but on the other hand, what you do is you take into account the judgment of the attorney general in that case, but other than that, you take the plan into account notwithstanding the fact that it hasn't been precleared. >> but we've said over and over, mr. clement, that it's the attorney general and the district court in d.c. that has exclusive jurisdiction over this set of questions and that we don't want courts in other parts of the country to try to

mimic what those -- what that court and the attorney general are supposed to do. and you are essentially asking for the district court in the state of texas to try to predict what they are going to do and to mimic what they are going to do. and that's why justice alito suggests, well, look, if we said that only the district court in d.c. and the attorney general should do this, let's wait until they do it and go from there. >> well, justice kagan, here's why we are not asking the regional court to mimic the d.c. court's function. we are asking it to perform correctly one of the roles that this court has always made clear the regional court retains. and that's to provide temporary relief. if you look at this court's decisions that essentially warn off a regional court from arrogating to itself the final preclearance decision -- i'm thinking, for example, of connor against waller -- those same decisions say, but this is not with prejudice to your ability to provide temporary relief. now, our position is quite simple. if we are in a situation where

the regional court has to provide temporary relief, then it should apply the same standards that always apply everywhere to courts issuing temporary relief. >> but you are not taking into account the fact that, as justice sotomayor said, section 5 itself operates as an injunction. and it's an injunction against the use of an unprecleared plan. >> justice kagan, i think we are taking that into account. i mean -- and i think that's at the heart of what's going on here. you have to ask yourself the question -- what is the remedy that the texas court in this case was trying -- what is the violation, rather, that the texas court was trying to remedy. the appellees proceed and i think your question proceeds on the assumption as if the violation is a section 5 violation. but that's not what motivated the court's opinion, and you can -- i mean, look at page 96 of the joint appendix, where the court specifically says -- look, texas has always been cleared. they need to get preclearance. so this is not about enjoining them from implementing the plan. the constitutional violation that is being remedied here and the only thing that gave the

texas court any authority is the one person, one vote violation with the old plans. >> that's what they said they are doing. i mean, i count eight times in the house plan, the state house plan, and several times in the senate plan where it's clear and i think it's fairly clear in the u.s. house plan, they say things like, "the court began by considering the uncontested districts from the enacted plan that embraced neutral districting principles, although it wasn't required to give any deference." and you say they are wrong about that. "the court attempted to embrace as many of the uncontested districts as possible." so after i got finished reading their opinions i thought, well, there may be a difference between what you say and they say, but i'm not sure that there is a difference that is reflected in the maps. and so it's now january 9th. we have to have something in effect by february 1st. they said that they are paying attention to what the legislature did and when i looked at the maps, as far as i

can tell, they include some more, some less, most in the state senate, but they include a lot of the state's changes. so what am i supposed to do? i mean, i can't tell whether you are right or wrong without looking district by district by district by district. what am i supposed to do on january 9th? >> well, i think on january 9th, justice breyer, you should take another look at el paso county. because i think if you look at el paso county -- >> in which -- >> in either the congressional map or the house map. i think if you look at el paso county what you cannot conclude is that all -- >> what district is that? >> what's that? >> what district is that? >> well, it depends. if we are looking at the congressional map, i believe it's district 16 or 17. and those maps start on page 1. >> ok. el paso county in the original plan i guess was all like number 16. i've got it in front of me. and they split it, and it was split somewhat differently or not. ok.

then what else? >> well, i mean, i think you are understating it. i mean, on the benchmark plan -- >> no, no, right. >> there is a whole straight line. on the enacted plan it was a different straight line. >> correct. >> and in the -- >> all right. so right now, why is that wrong? why is that wrong? tell me why it's wrong for them to do that? >> i want to say two reasons why it's wrong, but first i think that really does answer your premise, which is that all the court was doing was remedying one person, one vote. >> no, no, i didn't say that. i said in their way of thinking they are taking the map into account. now, to sit -- the enacted one. if i disagree with that, i can't disagree at the level of principle, i have to disagree at the level of particular districts. that's why i asked you the question. so you point to district 16 and i say, very well, tell me what they did wrong, and why? because, remember, they are facing a challenge that's based on section 5, part purpose.

and the district court there said in the d.c. -- you don't survive -- i can't give you a summary judgment on that, purpose here may have been violated. all right, now you tell me what's wrong with district 16, which i guess is your strongest case? that would be helpful. >> no, what i'm -- i'm not saying it's my strongest case. i'm saying it's illustrative of the problem. another thing that's illustrative of the problem -- >> but what's was the problem? >> tell me what's the problem? >> the problem is that the court lost sight of what it was supposed to be doing. it was supposed to be -- >> what you said they were doing. they couldn't have lost sight at the level of generality, because at the level of generality they said -- we are trying to take into account the map. i'm just repeating myself. i want to know what is wrong with the drawing of district 16, what they did, given that there is a section 5 challenge based on purpose? >> and what's wrong with it is because they neither started with the old benchmark plan and said we are going to solve the one person, one vote problem,

nor did they start with the new legislative plan and say is there some violation that allows us to change that plan. they instead, as they told you said that they were on their own drawing an independent map. >> i'm sorry. that's incomplete. >> you can finish, finish your answer, please, mr. clement. >> what i was hoping to say is that they told you they were drawing an independent map, and what they told you is that they thought that they were under an affirmative obligation not to defer to the legislative enactment because it hadn't been precleared. and the oddity of this -- i mean look, you're right. in certain places, they then turn around and say -- but we deferred where we could. but the oddity of their position is their first premise, which is the one thing we can't do in drawing these maps, is look at that unprecleared map. there's no explanation for why, if that premise was right, why would it be even a good thing that were pointing to the other map. >> counsel, i'm not sure how i understand that, ok? as i looked at one of the el

paso maps, the enacted map created an antler-type district, a head and two unconnected antlers on top, nothing tying them together. the district court went back to the benchmark and said -- this is the benchmark district, now i'm going to draw the districts around it that fall naturally, trying to stay within neutral principles of not dividing up the city more than i have to, and it came out with another district. i don't understand what principle, what legal principle, the district court was violating that makes what it did with that particular county wrong. you're saying they should have given deference to an oddly-

shaped district that changed a prior benchmark that's been challenged as having been created specifically to minimize the latino vote. all of the challenges that relate to el paso are very significant. the district court has already denied summary judgment on that. tell me what legal principle they violated, other than the deference principle that you're relying upon? >> the basic principle they violated is they drew an interim order that they thought wasn't a remedial order without it being based on any finding of substantial likelihood of a violation. >> that's your -- >> you may be right. you may be right. there may be a problem with those maps in el paso. i don't think so, and i would like to talk about that. but if the district court had said, you know, there's a problem with this because the two antler -- the deer with two antlers, that violates -- that's a substantial likelihood of violating the constitution.

we're going to remedy that. if that's what they did, this would be a very different case. now, i do want to talk about the deer with two antlers, because what that ignores is that in the benchmark plan, the deer had one antler and an antenna. and so the district court -- the map the district court drew doesn't look anything like the benchmark, and actually the map that the legislature drew looks very much like the benchmark. and so i think that just shows that what was going on here i think what that shows is something very different interest either remedying a one person one vote problem with the benchmark or them correcting specific identified problems with the legislature. >> i had thought, mr. clement, that one of your objections was that in deciding whether they are using the benchmark or the legislature's proposed note plan, whichever one they are using, they -- in drawing up

their own plan, they assumed the validity of all of the challenges. is that not the case? >> that is the case, your honor, and that is one of the many problems with the way that the court proceeded here. because once you lose sight of the fact that, look, we only have remedial authority if we are remedying substantial likelihood of violations that are identical and particular, then what are you gg to do? what this district court did after he started where justice bier suggested the district court judgets then said we ought to avoid the challenges brought by the plaintiffs. what they mean by avoid they basically take all the allegations at face value and then redraw -- >> you don't have any problem, if i'm a district judge and i think there is a substantial likelyhood that a particular challenge will succeed, you don't have any problem with my drawing an interim plan to avoid that likelihood? >> absolutely no problem at all, justice ken dism the great thing about that that gives the

district court a familiar role to play applying familiar standards -- >> the district court in that scenario is projecting what the d.c. court has exclusive authority is going to do. and that's why i find your position troublesome. you are asking one court to make its best guess at what another court is likely to do. and that other court has exclusive jurisdiction. >> can i respond to that, justice ginsburg? i had assumed justice kennedy's question was not specific to section 5 and could just as well be an equal protection under the constitution problem. in that case there is no problem. all the court is doing is making a substantial likelihood determination of an issue that it's ultimately going to confront. >> haven't we also said with respect to section two and constitutional violation that is those allegations would be unripe in the prior -- prior to

the district court or the attorney general clearing a plan? >> absolutely, justice kagen, i think it's important to understand to the extent that the district court in this remedial phase should take section 5 into account it's in considering whether or not the remedial plan is consistent with section 5 principles. what i'm asking to do is something with section 5 that they otherwise wouldn't do. again i think if you come back to the particular question of, what are they trying to remedy? they are trying to remedy the one person-one vote problem. if that's what they are trying to remedy, why wouldn't they take into account the legislative policy judgments reflected in the unprecleared plan if that's the state we are in? if that's the snapshot we are in? keep in mind this court has throughout -- >> just because section 5 says there is no presumption of regularity attached to that plan, and indeed it's unlawful to put that plan into effect without the proper approvals.

>> two things, justice kagen, one, i would beg to different what section 5 says there is no presumption of regularity. i think that's -- it's not just a quibble. what section 5 says is there is no presumption of regularity or no presumption of faith, ection 5 i think is closer to the constitutional edge than this court said -- >> section 5 says somebody has to clear it before it can go into effect. >> absolutely. but i don't think that means that the assumption is the legislature did act in good faith in enacting the provision. >> nobody said the opposite. the question just is did somebody has to clear it? here it wasn't clear. >> i agree. the question is, if there is not a presumption of bad faith, why wouldn't the court take that legislative judgment into account in drawing its remedy for the one person-one vote violation in the remedial district? my second point, the preclearance obligation is not

driven by congressional judgment that these covered jurisdictions are particularly bad at remedying one person-one vote problems. obviously section 5 is driven by concerns with racial discrimination. in that sense it's particularly odd give what's at issue here is a remedy for one person-one vote problem that you are going to assume you are not going to take into account the legislative judgment -- >> no, i don't think that. >> i see two different problems. one, you cannot assume that the legislature's plan should be treated as if it were precleared. the district court in texas cannot assume, or presume what the district court here in d.c. is going to do. on the other hand, it can't presume it the other way. it can't draw taste interim plan assuming there are going to be these section 5 violations that is presuminging what the court will do the other way. how do we decide between those two if two wrong choices, how do we end up? >> i think you try to split the

difference by trying to apply the preliminary injuppings standards. i think if -- injunction standards. i think if you do that you are going to ensure that the remedy that the district court draws for as an interim matter for the one person-one vote problem. which is not the same thing as preclearance. that remedy is both consistent with the legislative policy judgments but also with section 2, with the equal protection clause, and suppose if this court wants to, it can say for purposes of interim temporary relief the court can look at section 5 directly. the better answer is focus it on section 2, the equal protection clause, and ensure that the judicial plan is consistent with section 5 principles because that's the test that the court will apply. >> can you tell me with reference to the two districts other than the senate district congressional and as the statehouse districts, did judge smith defer or use the texas

legislature's 2011 plan as a benchmark? >> i don't think judge smith, if i can answer your question, i think this does, i don't think judge smith did this the way we think he should or focused on the benchmarks. if you looked at the congressional plan, what he did he picked one of the proposals that was a bipartisan proposal. with respect to the house plan i think he got the texas house plan, i think he got it closer to right, but i don't think he applied the right standard. i ask you to look at joint appendix 193 and his consideration of house district 33. there what judge smith did is said there are these allegations and i find -- said the state has persuasive responses. but out of an abundance of caution i'll redraw the district. that doesn't seem right. if the state does have persuasive responses -- >> you would fault his solution for giving insufficient deference to the state of texas 2011 plan? >> that's right. but it's certainly a fair

improvement over what the district court majority did. i reserve the balance of my time. >> thank you, mr. clement. >> thank you, mr. chief justice. may it please the court. the fundamental plaw with the texas approach it averts the burden established by section 5 of the voting rights act. section 5 places the burden on the dirsjicks to show that a proposed voting change is nondiscriminatory in purpose and effect and the change can't go into effect unless and until the state -- >> let me ask you this say this is a state not subject to section 5. would there be a problem in your view with what the district -- with what the district court did? with what judge smith did? >> well, with what judge smith

did i guess in that context, justice kennedy, there wouldn't be a section 5 issue. all we are dealing with is section 2. >> then there would be no problem with using texas as a benchmark. the texas 2011 as a benchmark as a starting point. >> well -- >> as a starting point. >> well, i guess what i would say is this, in the portion of the context what this court has said the district court should do is start with a plan that's already in effect. and then modify it according to neutral districting principles to move the malapportionment issue. >> anybody who draws a map faces at the outset certain legal constraints, constitutional constraints, restriction that is are imposed by the voting rights act, maybe state law restrictions to the extent they are not inconsistent with federal law. once you have gotten beyond that point all you have left is districting policy. policy choices. there are many factors that can be taken into account in drawing

a map. how compact you want the districts to be. it what extent are you going to respect zones of common economic interest. to what extent are you going to try to preserve old districts? what about incumbents? what about party registration? are you going to try to have balance? or are you going to try to favor one party or the other? those are all questions of policy. the question is, who makes those policy decisions? are they going to be the policy decision that is were made by the legislature? or are they going to be the policy decisions made by the district court? and to say they are going to apply neutral districting principles is a subterfuge, there is no such thing. >> two preliminary observations on what a district court is supposed to do in this regard and try to walkthrough the principles. the nirspliment observation is what a district court is not supposed to do. what a district court is not supposed to do is take the unprecleared plan as a given because section 5 forecloses it. what the district court's supposed to do? it's not a fee, contraretry to

the underpinning of some of the arguments, because the distrkt court starts with the last legally enforceable plan, which is the last manifestation of state policies and priorities. you have that as a starting point. it has to modify that plan to deal with malapportionment issues and comply with section 2 and section 5. >> even if you start with the old plan and then you modify it to the extent necessary to comply with constitution and statutes, there is still, i'm sure a computer could shoot out dozens and dozens of possible maps, and somebody has to choose among them. now, what criteria does a district judge -- distrkt court use in making that choice? >> there is an increase. i'm not going to disagree with that. what it looks to is the districting criteria applied by this jurisdiction in the past. for example -- >> it's political discretion. that's what's troublesome about it.

it seems to me the government takes an absolutist approach to the proposition that you cannot use an unprecleared plan for any purpose. all the law says is that you cannot apply a precleared plan. the plan being applied here is not the texas legislature's plan, it's the plan, a remedial plan, adonted by federal judges. -- adopted by federal judges. to say that they cannot use in drawing up that plan the legislature's last political decisions seems to me not required by the mere prohibition against implementing that plan as the plan of the legislature. what would you do if the district court in washington and the district court in texas, neither one of them acts in

time, and it's too late. it's too late to have any primaries anymore. what would happen? >> i guess -- >> what would happen? you can't use the old plan. you have absolute rule against using the new plan. what happens? do you disenfranchise every voter in texas? because there may be some voters in texas who maybe, some who will be prejudiced by using the current plan. i suggest in that situation there is nothing to do but use the texas plan. >> not in the context of section 5, your honor. it's -- that's one option. the other option would be to use a malapportioned plan which this court has suggested would be something the courts could do. that's not a preferred option to be sure. we are not in that situation here because what you have is an interim that has been developed. we are not kind of emergency situation -- >> there are some situations in which you can use the very plan that the texas legislature adopted even though it's not

been precleared. >> only if there is no time for the district court -- >> it is no longer an absolute rule. the question is whether this is another reasonable exception to a nonabsolute rule. >> there is an emergency exception as there is with all sorts of legal rules. we would like a dress the proposition that what the court would be doing here under texas' view is just a standard application of substantial likelihood of success principles. because it's not. it's decidedly different from substantial likelihood of success principles in three fundamental respects. the first goes to the burden, justice kennedy, the burden in a preliminary injunction context, stays with the same party as the preliminary injunction stage as temerity stage. the court is asking as there been a substantial likelihood of success on the merits. the same has to make that showing as has to make the showing temerity stage. here texas would -- >> would it be ok texas has to

make the showing? >> that would certainly be better? that would improve things. that's not the approach texas prose poses today. it's different in -- proposes today. it's different in other aspects. one is what justice ginsburg alluded to. you don't have the situation which the same court which will forecast this will also decide -- >> that's exactly right. you see only one side of the problem. you can't treat it as if it's been precleared that would be prejudging what the court in d.c. is going to do. but you have no problem with them saying that assuming that there are going to be these section 5 violations and drawing additional majority-minority districts which is just assuming the other way what the court here in d.c. is going to do. i don't know how you lean one way and say it's horrible. you can't use it because it hasn't been precleared, but it's all right in drawing the interim plan to treat it as if preclearance has been denied. >> i don't know about that. what the district court is supposed to do when preclearance

is pend something not accept all the challenges. what it's supposed to do is apply traditional districting criteria to the benchmark. >> do you contest the view this district court did accept the challenges, did say, look there are these challenges, so we have to make sure that we don't do anything that suts against them? >> there is some language in the opinions to that effect, justice kennedy. i have to say the district court opinions here are not a model of clarity. in some respects they seem to -- if you look at joint appendix 137 to 138, what the district court said it was doing is starting with the status quo which is the benchmark. >> if you look at joint appendix 146 to 147 it looks the exact opposite. it looks like they are drawing majority coal lution district to draw them because they anticipated how they think the district court in d.c. will come out. >> that's right. we point to that in our brief as an area in which the district court can give further explanation. >> isn't it odd this is the

section 2 suit and yet section 5 seems to be driving that? that's the problem with this litigation it seems to me. >> i think section 5 -- >> section 5 applies only to some states and not others. texas is a tremendous disadvantage here in defending the section 2 suit and in drawing -- having -- judiciary for the disadvantage in framing their remedy for a likely section 2 violation in some of the districts. >> of course, your honor, texas is in a different position precisely because it's a cover jurisdiction. when you have a section 5 case, section 5 can't help but take precedent in some respects precisely because the proposed change can't go into effect unless and until it shows -- >> i wonder if it should take precedence in a section 2 suit? all this court -- this is the primary obligation of the texas district court.

is to address section 2 violations. >> that may be, your honor, if it can't address the section 5 issue at all, then the one thing that shouldn't happen is that the section 2 court gives effect to the unprecleared plan. because that's something that the d.c. district court is supposed to do. >> not giving effect to uncleared plan. giffing effect to a legislative judgment as to what is workable for all the factors and criteria that justice athletea referred to, county lines, etc. >> we'll let you go on for a little longer. we may have a few more questions. >> thank you. i appreciate that. i guess what i would say, justice kennedy, if you use the unprecleared plan as a starting point, which is what texas proposes, you are going effect to that notwithstanding the preclearance requirement of section 5. with the cover jurisdiction that's something section 5 doesn't allow. i do think it's important to consider texas' preclearance submission in the context of the other statewide preclearance submission that is was submitted in this election cycle. if you look at the government's

previous, i think what that bears out there is not a judgment problem with section 5 or the way section 5 operates, the problem insofar as it exists is with respect to the particular submissions that texas has made. because there were 20 submissions of statewide plans for administrative preclearance. all 20 cases the attorney general precleared them. in 19 of the 20 cases the attorney precleared it within the initial 60 day window. >> your position, i understand you are straddling a position that's why you are sitting in the back rather than the front row. it's a little unsatisfying because what you say we should do when we are all under the gun, very strict time limitations, we should send it back to the district court so it can give a greater explanation of what it's done. isn't that going to be wasteful? it's an order order from this court to send to a district court saying tell us more. >> i don't know. i have two responses in that respect. first, this goes to the question that justice alito asked earlier, what is this court

supposed to do in this situation? one thing that can happen they can remand the d.c. district court can complete its preclearance proceeding which would be illuminating for what the texas district court is supposed to do. >> what is that based on? >> the d.c. district court scheduled trial to begin on january january 18. closing arguments on february 3. they had summary judgment arguments on one day -- >> i read the opinion. and what you said on the phone and so forth. >> not that. >> it seems to me it's a complicated case. suppose you are completely right on your time schedule. they'll decide something. how could any human being redraw maps in five days or 10 days or you'll have six different positions? i think it's impossible. how can you -- i don't see how you can do it. >> the preclearance is granted we won't have an issue. >> i think there seems to me from reading it, i didn't think that the judge there is ready to

grant preclearance. the other thing in sending it back, i read the brief, and then i read the opinions. i don't think i have -- i'm not being too generous to the opinions, but i thought they were saying throughout is we didn't try to draw extra poll ligs or extra opportunity districts. they emerged. they say emerged about seven times. they emerged as we tried to apply equal vote principles. it's hardly surprising it would considering the population growth is primarily due to the minority expansion. so they didn't seem to me -- why do you want us to send it back to get more explanation when that seems to be the explanation, and to me at first blush it seems like a perfectly good explanation. >> previous answer. >> sure. -- brief answer. >> sure. insofar as the coalition districts and ability district, there is nothing suspect about

them. the one example i point out is district 33, if you look at joint apen decks pages 146-147 it's not clear what the district court was doing in that regard. >> thank you, counsel. >> mr. chief judge, may it please the court. there seems to be general consensus on at least three points that we have talked about today. first, that the unprecleared plan cannot take effect. second that the district court is foreclow closed from entering and engaging in -- foreclosed from entering and engaging in an analysis. and at this point a court ordered plan must be implemented on an interim basis. >> exclude me from this second segment. i'm not sure that i got along on that. as you phrased it. the way you say it you say they could not make the kind of

preliminary inquiry that your friend suggests. >> i think we are dealing with matter of semantics, your honor. the question is, did the court give the states plan deference? itself said it began as it should, as it has been directed by this court, with the historical or benchmark configurations. and then respected the state's plan. >> you know what i don't understand about your brief, mr. garza, is if the states -- if the plan has not been precleared, you should be saying the states can't look at the plan. you're saying isn't it great because it did look at the plan. and on the other hand you are saying it can't look at the plan. which is it? there is real tension? isn't it great and then you say they can't look at the texas

plan. >> we don't say the court can't look at the texas plan. what we say is that the court can't implement the texas plan. did certainly can't implement the texas plan if there is any suspect for discrimination. what it did was exactly the right -- >> you're saying the court should look at the merits? >> i think the court did the appropriate thing by looking at the -- >> let's go to justice scalia asked was, what does the court do with frivolous claims? does it assume under your theory that those frivolous claims are valid? if you say no, it isn't assume that, then what level of inquiry should the court engage in before it accepts or deviates from the enacted plan? >> i think that the court should look -- first of all should not start with the state's plan.

it should look at where there have been objections made. and the role of the district court and the district of columbia is where the question of whether there are frivolous claims have been made. and there have been no motions to dismiss any of the claims in washington, d.c., based on frivolity. >> the texas court cannot -- should automatically accept every district that the challenge has been raised in the d.c. circuit court? >> ited you -- it should not accept any of the districts that have been challenged. a i didn't mean to interrupt but i didn't follow that. so long as a district has been challenged in d.c., the court in texas should not accept it? >> it should make a determination either way, it didn't. in those districts it didn't adopt the plans that were put forward by the plaintiffs or the challengers in washington, d.c., it looked at the benchmark plan.

>> could it look at that district and say it respects county lines, follows a river? could it look at it for that reason? and rely on the legislative judgment as making a sound judgment that the river runs through here and the county line is there? that seems to me the difficulty with saying you can't look at the plan. >> i think the problem with that, your honor, is that then it would be assuming that the state is correct. that it doesn't voy late section 5. -- violate section 5. that is an inquiry reserved to the district court in the district of columbia. >> when you say they can't approve something that's been challenged, aren't you assuming that the plaffs are right? -- plaintiffs are right? >> no. what the court did, it didn't accept as a remedy what the plaintiffs proposed there. it reverted to state policy. which is what it's directed to do by this court. it went back to state policy and it looked at the benchmark plan.

it started with the benchmark plan. even with the congressional plan where there are four new districts, and there is no comparable district in the benchmark, it looked to the legislatively enacted plan to determine where you would place those districts. >> that is not the current state policy. the benchmark plan is gone. it's old. the texas legislature now has a different polcy. and that you say should be -- polcy. and that you say should be ignored. >> that policy cannot be deferred to. it is incorporated in the court's plan in the manner in which it did review the plans. that is -- >> there is a presumption of its invalidity. >> what the court did -- >> not either way. you are presuming it invalid. >> you're suggesting that -- you're reverting to the next polcy.

you are not incorporating it, but you are not making any decisions. the way you sort of walk that tight rope is you go to what the state policy was before the enacted -- >> let's say a legislature says we have a new policy and that is that once we have satisfied our constitutional obligations and our obligations under the voting rights act, the only thing we are going to do is try to draw the districts the most compact possible, compactness over everything else. they draw up a plan that embodies that policy. and it's challenged under section 5. can the kiss trict court just say, well -- district court, just say, well, the state policy is compact over everything else. we don't agree with that because we have other neutral principles that advance the interest of the collective public good, which is the term that this -- the words of this court used. can they do that? >> i don't believe they can. and this court didn't. the court -- >> if they can't do that you are saying they are constrained by state policy except to the

extent the constitution or the voting rights act requires otherwise. >> in that case part of the voting rights act is section 5. in those areas and districts where there have been challenges -- by the way the distrkt court, district of columbia has determined that those challenges are substantial. because they have denied a preclearance. in fact they have said that texas -- >> they denied summary judgment. >> they denied summary judgment. but they went even further. they said texas has not disputed many of the interveners' specific allegations of discriminatory intent. under the summary judgment standard they have to find that the challenges that are being made are substantial. the district court in texas was not free to incorporate discriminatory districts in its interim plan, anti-it didn't. it -- and it didn't. it first went to the state's

plan, benchmark plan, to begin the process of how it was drawing those districts. there is a good reason why texas is covered under the voting rights act. as this court indicated there is a terrible history of historical discrimination in texas. including discrimination -- >> the constitutionality of the voting rights act isn't an issue here. >> that's right. >> maybe you can turn a moment to the issue that i see on appendix 146 and 147, they don't say a minority coalition opportunity district just happened to emerge. it said that district 33 was drawn as a minority coalition opportunity district. we have never held that it is appropriate or even permissible to draw a district where you are putting together two minorities. two different minority groups. it seems to me that raises all sorts of different concerns. it's one thing under the voting rights act to say this group votes as a block and has been scrimented against its ability to elect representatives of its

choice. it's no thing to say two different minority groups are put together because they share some particular view so that one candidate is going to be each of theirs candidate of choice. that goes a step further than what we have held. here you have the district court creating that in the absence of any state expression of desire to create that type of district. >> i think that the statement that the court made is a correct statement. it did create a coalition district in dallas. but that's not describing how it reached to district. it describes how it reached that district is in a number of other places, however it's discussed above the courts is not intentionally created any minority districts. >> district 33 was drawn as a minority coalition opportunity district. i don't see how it can be read any way other than saying what we sat down and drew it we drew

this one as a minority coalition opportunity district. >> of course it can be read differently than your honor's interpretation of this because the court has said over and over again, we did not attempt to create coalition districts. we did not attempt to draw -- >> are you saying something can be read differently than that and said because they said something else somewhere else? >> what i'm suggesting is what he's saying is that this is the result of what they have done. that sentence can also be interpreted as saying this is the result of what we have done. we have created the wrong -- >> as drawn, as a coalition? >> yes. >> the fourth new district, district 33, was drawn in the dallas-fort worth metroplex to reflect population growth in that area. then he goes on to say just what justice scalia says. i did read that as saying, well, when you apply -- i read it

consistent what they said which is what they are doing is population grows, you have to have one person, one vote. the legislature itself in the new plan did create a minority whatever you -- the opportunity district here. we are following what they did. we are taking into account population it turns out to be and we do create it as, in which case there is ambiguity here. >> precisely. there is no independent evidence this was a racial gerrymander. what do courts look at? split voting plea dicts where you go out and carve and bring in minority voters. this district maintains voting precincts intact. it is entirely within one county. it is a compact district, especially when you compare it to the district in that part of the -- >> i'm sorry, why do they care, then, that it was drawn as a minority coalition opportunity district? you're saying they didn't do that at all, they followed precincts lines. >> i believe it's describing what the result of their map

drawing is. i think that's perfectly legitimate. >> can we infer either from the ambiguity or other reading of the isn't that the chief justice suggested that in the court's view it was desirable to have a minority coalition district? i draw that inference. >> i think it is desirable to have a minority district there. >> minority coalition district? >> moreover. i think the court -- >> you would defend the plan on the ground that this is a sound result? >> i believe that the plan that was drawn by the court is fair. is it the optimum plan that the plaintiffs wanted? it is not. >> one of the basic rules that was followed in drawing up the court plan was not to divide any voting districts, right? >> that's one of the principles. >> why? that certainly is not a principle that the texas legislature agrees with.

>> there's two reasons, your honor. one is -- >> the court just made it up? >> no. there are two reasons why the court saw maintaining voting precincts is important. one is because that's what it's been directed by this court in bush vs. veta. the court said we have an interim election, or an impending election, and it's important for election administrators, in order to be able to implement without interference, a legitimate election process to have whole precincts because whole pre60's makes a big difference in terms of how the election is administered. the second reason is that this court didn't adopt this plan without any inquiry into the standards and proposals from the parties. it was very deliberate. it was very cautious. and it was very open. we had three days of hearings on what these plans should look

like and what the standards ought to be, including testimony from election administrators and from the texas state. in every instance those administrators and that representative from the secretary of state said the most important thing the court should consider if it's going to order us to start conducting lessons under a different plan is maintain voting pre60's. that's the most -- that is the most cumbersome part. >> this is a matter of administrative burden and expense and we are willing to bear that. so disregard that. the district court can say we disagree with you. in order to make it more convenient, less expensive tore texas, we are going to respect voting districts. they can do that. >> the state didn't do that. >> could they do that? the district court do that? that's my question. >> yes, i think they could because there is still the authority of this court in bush vs. vetta that directs demorts drawing interim plans for

impending elections to be cautious about that. number one. number two, if in fact in order to get an appropriate map, you must split a number of precincts, which means that you can't conduct the election on april 3, we still have time. as the government's attorney indicated, the -- there are states that conduct primaries as late as jupe 26. the drop dead tedline is not april 3, it's november 6. so if this court disagrees with our position and is determined to send this back to the district court, it should consider this. the district court and the district of columbia is about 30 days away from rendering a complete decision in the section 5 case. that would place the court in texas in exactly the -- and the court is poised to move. it can move with all due

diligence t had two weeks of trial in which it heard testimony on the plaintiff's claims. it is ready. once the district court and the district of columbia tells us these are the problems with the state's plan, the court in texas is primed to make its decision on the plaintiff's claims under section 2 and the constitution. >> what's the real drop dead date? it's not november 6 because that's the day of the general election. what's the latest primary election any state has? june 26? >> june 26, your honor. >> working backwards -- >> i don't want to interrupt. isn't that the day of the last presidential primary rather than congressional? >> that's right. utah is the last -- state with the last primary in which it conducts both the state's primary and the presidential. there are -- in fact states that conduct primaries as late as september that have no

presidential primary. >> how many days before that election do those -- does the voting mechanism or apparatus need to set up the voting booths, etc.? >> the critical date is 45 days from the election in order to ensure sending out a ballot to overseas voters, including the military. if you go back 45 days and then you give the jurisdiction sufficient time to develop a ballot because you need a ballot to send to the soldiers that's about what the testimony was, that takes about 90 days, i believe is what they testified. so 45 days plus 90 days. and that's the drop dead deadline. >> go back to june 26, where does that leave us? >> june, may, april. end of march, right? >> you could develop a plan by

the end of march. we could conduct an election in june. late june. >> what do you expect the d.c. court to finish? >> i would expect it to finish within 30 days of today. because we have closing arguments on the third of february and if the court has -- will act with the sort of diligence it did on summary judgment, which was a complicated record, and a large record, six days later it made its determination, it didn't issue its memorandum opinion but it gave us something we could run with. >> when do you expect our decision on the appeal from the district court in d.c.? >> later this afternoon. >> they did right in a summary judgment opinion they needed some and it's very complicated.

>> yes. >> that's why i have some doubts about how swiftly they are going to rend irtheir decision after what is date, the trial will end on february 3? >> that will be closing arguments, yes, your honor. >> is there anything in the opinion from the three judge court on the district of columbia that indicates there are some likely potential violations under section 2 violations as well as section 5 violations? >> from the -- >> i can amend that to, in the submission of the parties? >> in the district of columbia. >> yes. >> well, i believe that the court has found that plaintiffs have made substantial claims with regard to retrogression and intentional discrimination. intentional description -- >> the second being section 2 violations as well? >> intentional discrimination is a component of section 2, yes,

your honor. i think it's important to note that judge smith in texas used in a manner of speaking the preliminary injunction standard being advocated by the state and they would not be able to meet that standard because generally judge smith determined that the plaintiffs had presented colorful claims of statutory or constitutional infirmity rule that the plan was in extreme gerrymander. rule that elimination of district 149 presented section 5 problems. rule that the legislature dismantled the minority district -- >> do you have substantive objections to the plan suggested by judge smith in the house and congressional districts? >> yes, your honor. we believe that there are section 5 claims with regard to

harris county. judge smith addressed the constitutional -- >> do you have some section 2 objections? that doesn't work. you have to talk about retrogression. >> right. in district -- harris county the court did equalize population per the state to justify the sorts of deviations contained in that district but didn't provide in our opinion additional remedies. but judge smith's proposed plan for the statehouse is in fact very similar to the plan that was proposed by the majority. it differs by only one minority district, that is one additional minority district is contained in the interim plan than is contained in swrudge smith's plan. >> mr. garza, what would you

think if the court could start with the texas plan and say that the new texas plan, and say anything that's consistent with statutes and the constitution can go forward, but it's texas that has to show that consistency. so flipping the burden of proof and the way that mr. srinivasin was suggesting in a way that makes it more consistent with section 5 burden. >> i think that our position is that section 5 is clear. that this court should not start with the interim plan. if the court disagrees with me, i think that's a much more reasonable approach than the one offered by the state. for the same reason argued by the united states. that is that in the state's argument you really turn section 5 on its head because one of the principle -- principal benefits for the minority community in having section 5 is that it

alters the burden of proof. if you maintain the burden of proof on the state before it can implement any portion of its clearly adopted but unprecleared plan, that's far more preferable than shifting the burden which would be inconsistent with section 5 and its intent. >> i don't think i have anything else. >> thank you. thank you, counsel. mr. clement, you have three minutes remaining. >> thank you, mr. chief justice. just a few points in rebut. as one of justice alit kwlow's questions highlighted, one of the things that makes remedying a one person-one vote problem particularly unique is there are an infinite number of ways to solve the problem. for that reason this court has always looked wherever it could to legislative guidance. so much so in light against advisors, this court looked for legislative guidance for a plan

that had been declared unconstitutional for failing to accommodate one person-one vote problems. yet this court still said the district court erred in not taking into account to the extent it could. as to the hard choice, if it comes to that in using the legislative plan that reflects the legislative will or the judicial plan that even the united states concedes is flawed, i think this court faces more difficult choices in the past. in wiser and witcome, in both those cases this court chosed between an add jew katedly unconstitutional state plan and judicial remedy that it determined was flawed. in both cases it ordered the election to take place under the flawed actually adjudicated imperfect plan. compared to that simply saying that an election should go forward under a plan that hasn't been precleared is a far less serious step. there was a reference made to the three days of hearings. but the problem is three days of hearings with an

unadministerable is worse than one day of hearing. what we ask is for a preliminary injunction standard familiar to everybody. everybody understands and everybody can apply. >> why should it be -- shouldn't it be inverted the way your friend suggests. >> that's better than the worst alternativive. it's better than the district court opinion. here's why it shouldn't. that actually further intrudes on the d.c. court. the question the remedial court should not be asking is geez, do i think -- what are the odds the d.c. court is going to preclear. it shouldn't ask that question. it should ask the questions before before it. is there equal protection violation? if there aren't those, and i use the state's plan, does that create a section 5 violation? that's different from the preclearance question and on that section 5 question the burden is not logically on the state. that's the same section 5 question that the court considered on its own motion, because it understands that even

when it picks a plan it has to be consistent with section 5 principles. justice kennedy, you asked the question, what if we take section 5 out of this, what happens? then it's an easy case. then it's the preliminary injunction standard. the objection to that is, how can you take section 5 out of it? there is not an interference with section 5 because texas still understands. it needs to get preclearance. before its changes can take permanent effect. it's never waivered from preclearance. simply going to say if you go back the default problem here is there is an infinite number of solutions. it's problematic with the congressional map. there are four new seats. there is nothing else to refer to. thank you. >> thank you, counsel. all counsel, i appreciate the extraordinary efforts you had over the holiday season. thank you very much. the case is submitted.

[captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2012] you >> the south carolina primary is this saturday. the road to the white house coverage continues. live coverage here on c-span. a leading up to saturday's south carolina primary, c-span's road to the white house coverage takes you live to the candidate events all this week. >> we need to eliminate these means tested entitlement programs. we need to cap them, cut them, cap them, send them back to the states, remove the federal oversight, and let the states have the flexibility to deliver these programs. >> we have brought to the forefront, others have tokenly talked about it, they and they do nothing about it. but right now it is this liberty movement which is seen as a patriotic movement, individual liberty movement, that is saying to the country and to the world, we have had enough of sending

our kids and money around the world to be the policemen of the world. it's the time to bring them home. >> candidates get their message out. meeting voters. >> we feel like the conservatives are coalescing around our campaign and that's not going to be good to us. >> find more video from the campaign trail at c spafment.org/campaign2012. >> a new "washington post" abc news news poll finds that 48% of americans disapprove of the job congress is doing. 2/3 say they strongly disapprove of congressional actions. the house meeting today to start the second session of the 112th congress. a pro forma at 2:00 p.m. though vote on the sergeant at

arms tonight. votes at 6:30. tomorrow, a vote on disapproving of the president's request to raise the federal debt limit. that will be it for the week. we'll have live coverage here on c-span. politico's chief white house correspondentent, mike allen, had a one-on-one with nancy pelosi this morning. they talked about the one-year payroll tax cut. this event was part of politico's playbook breakfast series. held at the new see yum. -- nuseum. >> good morning. mike allen, politico's chief white house correspondentent. welcome to the first politico breakfast of 2012. we are excited to be here with leader pelosi. we are excited for your play books.

thank you for coming out in the rain and braving fire alarms and all that. i'd like to thank bank of america for their continued sponsorship of this partnership. these breakfasts are an important forum for matters that mean the most in washington. and they continue to sponsor these. we are grateful for that. also like to give a shoutout, i think we have in the audience, some alum my of the bank of america's urban alliance program. good morning. welcome. thank you very much for being here. welcome to you in live stream land. if you are following us on twitter. hash tag playbook breakfast. here at playbook, we read the papers together every day. a little news in the "charlotte observer", looking ahead, a sneak peek at some news for today. on the final night of the democratic national convention, president obama is going to deliver his acceptance speech at

bank of america stadium. convention officials are going to announce this today. it's part of an effort to mobilize voters in california. this is the "charlotte observer," and democratic sources said there are going to be other changes to the convention announced today. that's something you'll see popping on politico today. and you'll see in playbook tomorrow. also, politico is celebrating its fifth birthday a week from now. and as part of that for the first time today the print edition of politico, which you-all get to see and hold but a lot of people around the country don't know exists, today for the first time that's circulating every day in new york city, 4,000 copies every day in manhattan. and playbooker has spotted the politico box on park avenue and sent in an instrgram picture. i would love to welcome leader pelosi.

[applause] welcome back to d.c. this is your first time back this year, right? >> no, we were here last week. remember that? when we were on the floor of the house seeking recognition? >> you did a little texas trip in between, right? >> yes. i was in el paso on friday. houston on saturday. austin on sunday. and came here yesterday. >> not even in my native state, california. >> i started there on friday. >> what a schedule. before we get down to business here, politico's john bresnahan has a hardball for you. he says that the giant-san francisco 49ers game, he wants to bet you a box of gir deli chocolates vs. the equivalent amount, leave this to your discretion, equivalent amount of haggan dazz ice cream from the bronx. i understand you are quite a chocolate lover.

are you willing to take that on? >> absolutely. sounds like a no lose situation there. chocolate one way or another. he will definitely -- i will definitely enjoy that hagen dazz -- hagen das chocolate. >> what's your outlook for the spread? >> they said three points this morning which was interesting. i'm not so much in the spread. i'm into the wing. -- winning. i had a lot going on. it was all we had with martin luther king day and the trfl and the rest. -- travel and the rest. my hometown, of course, is san francisco, my native city is baltimore. so baltimore is playing houston. my grandchildren live in houston. my other grandchildren's father is from colorado. they were for denver. we couldn't lose.

favorite was getting ready for the mardi gras for saints. we tried to treat them very well. it was a lot of good news one way or another no matter who won. it was great, great football. don't you think? all weekend. wasn't it? how about the 49er game. did you see the last quarter of the game? if you haven't seen it, taking it down to minutes. it was something quite remarkable. talking sports. when i grew up in baltimore we had johnny unitas, two touchdowns in the last two minutes. that was par for the course. my children were growing up in san francisco, joe montana, two scores in the last two minutes. piece of cake. so this victory was in the tradition of what we expected. >> down to business. we are also welcoming -- >> down to business.

this is business. >> welcome our c-span viewers. we thank c-span for carrying playbook breakfast live. madam leader, back in october, when you were on "this week" you said you support the message of occupy. they are coming to you, they say they are occupying congress today. they have a permit to be down on the mall. i wonder if you think they have the right part. should they be protecting government? >> what i said at the time was that their message, that the status quo is unacceptable, is a message that i think is an important one for our country. i think if i had any connection to them what i would encourage them to do is something we are going to do first thing when we take back the house is to -- >> when will that be? >> in 10 months. >> how certain are you? >> we'll get to that. but it is the most important message i think that they have is the status quo is

unacceptable. and a critical part of the status quo is how campaigns are financed. it's a problem that has been exacerbated by the -- i don't want to say citizens united sounds too good a name, but the miserable decision by the supreme court to allow any and all funding secret, large, spint contributions into campaigns ridiculous. what we are going to do is right now we want, and i hope they would share that view, we want disclose where this money is coming from. when we win amend first order of business. amend -- reform, that's what we can do by law. disclose, reform the system, and then try to amend the constitution to change the ridiculous notion of that all kinds of money can weigh into

campaigns. this has created such cynicism in the public and justifiably so. >> madam leader, we new citizen united would be big, as it had more effect on the 2012 dialogue than you expected? >> 2012? on 2010 is what we were interested in and that was when -- but at that point there was no disclosure. and the minute -- what's interesting because the court decision was earlier. but the change had not set in until the disclose bill lost in the senate. once those major special interest knew that they could contribute endlessly secretly without anybody knowing where the money came from, then the floodgates opened. may of last year not many people -- passover, last year, not many people thought we would lose the house. by the time the bill