.embers of that committee starving the national institutes of health and the national science foundation and other catalysts of american innovation and medical progress simply contravenes common sense and our nation's prospects for economic stability going forward. medical progress should be an immutable american priority. in our polls commissioned by research america, a majority of americans say they would pay more in taxes if they knew that would go toward medical research . that is how important it is to americans. stalling that research now through sequestration or the kind of reform that is again undermining something we have two long taken for granted while other nations are ramping it up, will drag our nation down at the very moment we have everything oar. thank you.t

>> yes we do have time for questions. i think the unifying theme that you hear from this diverse group is, people want our leaders to govern and we want them to lead. it is time for them to doppler urging from one crisis to another and focus on some of the longer-term issues. i will quote erskine bowles here who regularly says we have made all of the easy choices. we have made all of the stupid choices and now it is time for this country to start making some of the real choices. we hear a lot of the interest here about just how important that is. i would be glad to turn questions over to the secretary, to any of our speakers today. yes? >> you talked often about sequestration, ask to the head, suicide. it is deal actually submits the

cuts under sequestration, putting the defense department for the foreseeable future. -- if thishe senate deal is a failure of leadership as you have referred to it? >> the fundable -- the fundamental challenge was to do whatever was necessary to and the shutdown of the government and extend the debt limit. this is a double whammy. 17 years ago we were just dealing with the cr. in this situation we had both the debt limit coming due as well as the funding for the government. so the first thing that had to be done was to do whatever was necessary to try to end the shutdown and extend the debt limit. i understand that a fight could have been done on sequestering and a number of other issues, but having been in that institution and understanding the kind of politics that you have to engage in in order to get things done, i think they

made a choice. is, understand that my hope that once you get into a budget conference and once you are onling with a bigger issue entitlement, discretionary as well as tax reform, that the decisions you make will not only help in terms of debt reduction and putting this country on the right path towards ending the deficit, but also will answer questions. is meant to compliment this negotiation was securing the cuts under sequestration budget control act. >> you are going to hear, i'm sure, over the next few days come everybody taking credit for what they want and lost but i have to tell you something. behas been said and needs to repeated, there are no winners and losers in this process. the american people lost and now they need to root their sleeves and do what is right for this country. lrp publications.

my question is this, for the congressman of the secretary, whatever comes out of a budget conference that obviously is going to be major changes in , one group that seems to have gotten attacked them had a federalce is employees themselves. there have been, for example in the erskine bowles, there was talk about further cuts in terms changes andpension that's her thing. what i'm wondering is do you think at this point some kind of continued reductions or continued changes in federal worker benefits is going to be necessary as part of an agreement or do you think that given what has happened, maybe that can be put on the back burner? >> i would say it is a fair question, but it is way too early. what we're seeing today is that everything needs to be on the table for consideration. the big items that are often left off the table need to be on the table for this discussion it as a many have said, this is a

process. it is not going to completely resolve itself through this committee process. a budget conference can come out with a budget conference report, which may in part put in a reforms,or further changes, reductions, increases, getting sequestration off autopilot and back onto we call in the house of representatives and the senate regular order. these are things that are important. your point, not only for government workers today, and we all know many of them, their friends, their family, but i also think about -- we are going to lose a generation of public servants. we may have lost a generation of public servants who have watched this process over the last 2, 3, 4 years and have just said, forget it. why would i choose public service as a vocation when it should be an admirable

calling. it should be, whether it is in political office or government service, there are so many good people who don't deserve to be used as pawns in this process. yes, changes need to be made, those changes may affect many workers, but it shouldn't just be about them. everything should be on the table. >> i guess this would be for secretary panetta and the chairman. is there any reason to expect this budget conference to be any more successful? has anything changed? doux stop the major sticking >> this is not meant to be easy and nobody should assume that it will be. the hard work begins now. the kind of game playing that went on over the last few weeks with the shutdown and the debt limit and all of the threats and counter threats that went on, that is the politics of this town.

the hard work, the hard work is to sit down and walk through the entitlements and determine what reforms need to be made, what savings can be achieved their. look at discretionary spending and lay out a path for that and tax reform. somebody was with me at the time that we sat down at andrews air force base and went through that process and walked through all of the entitlements and walked through discretionary spending and then walked through the whole tax arena and finally came to a bipartisan agreement, but that was tough and it was not easy and it took courage. there are risks involved, risks on all parts, but, that is what governing is all about. people to simply survive in office. we elect people to make the tough choices of governing this country.

hopefully, having been through this experience of the shutdown and the implications of not increasing the debt limit, will be a sufficient incentive for them to now turn to governing. >> james e russell, "stars & stripes." senator mcconnell was trying behind the scenes to get a provision and the deal that emerged in the senate that would give federal agencies more flexibility in dealing with sequestration cuts. as no need to tell you, the across-the-board nature of the cuts makes it very difficult for agencies. how important with that provision have been and how difficult is that for an agency to have to deal with that on --itrary, across-the-board >> it was a crazy formula. they decided to be crazy. to basically do a meet tax cut across the board that would be so bad it would force them to do

right thing. that was the hologic if you call a logic of why they developed sequestration. they obviously didn't have the courage to deal with sequestration so sequestration went into effect and it has created havoc. across the board, particularly at the department that i headed. i would rather, instead of to how youh ideas as create flexibility so you can move money around within the areds of sequestration or you but people to do trigger sequestration. that would be a more responsible approach. if you could get one thing from , i was told more flexibility. >> listen, right now they're sinking in quicksand. they would take whether the rope you will throw them. >> mr. secretary, was wondering

if you'd entertain a question on an unrelated topic, the serious topic up and ghazi. -- and benghazi. >> >> of institutional congressional reforms do you propose so that they look ahead to priorities. >> i would be interested in leon's answer to this as well because we have both been through the window when it comes to considering budget process reform. i think it is a bit of a panacea for this is the reason i say that, and i am the last person i believe who brought budget process reform to the floor and actually had a chance of getting something passed. my reason for saying it that way is that there are some changes that could be made, but the problem over the last 7, 8, 10 years is that it has not been used. onadvice to the committee

budget in both the house and senate when they held hearings about this was, why don't you try it? -- when you tried first? you might actually respected if you'd hear to the timetables, if you actually work together in a bipartisan way and and a bicameral way. so really what this process has an opportunity to do is to put that back on track. i'm not sure it will, before somebody blames the process, realize that this is a process created by human beings and if this human beings don't open their ears and start listening to one another and getting to know one another and realizing that, just as an example, if i'm not mistaken the president had in his budget this last year, over $500 billion worth of entitlement reforms. are manyet, and there republicans either don't know that or are surprised by that. i would take that as a good starting point as a republican

to say let's start there. let's bring our city table, let's see where we can work out both the differences as well as a commonality. it starts by listening and recognizing that we are not that far apart on many of these issues if we bother to open a party years and stop blaming the process and really look into our own souls and our own hearts about what needs to be done. question. >> just getting back to leadership and how this next round will be any different than the supercommittee or anything else. i am wondering if you can describe what you think the white house can do to encourage the next few months to go differently. you talked a little about this earlier. >> look, there are some elements, some basic elements that are important to make these kinds of budget conference's work. first and foremost is restoring some trust. these people don't trust each other for a lot of reasons, some are justified and some are not.

the problem is if you get into a room and you have to deal with tough issues, you have to trust the people you're in the room with, that they're going to tell you what they think, that they're going to be honest and that you been to tell them what you think and be honest. you're going to have that kind of exchange and your happened to suddenly walked out into a bunch of soundbites at the press. that is the kind of atmosphere you need to have, one of trust. secondly, you really do have to put everything on the table. we're going to study this but win a grant to do this. you need to put everything on the table. it does mean you're going to do everything, you put everything on the table and go through it and talk about each of these programs. when they work their way through it, they shouldn't agree on anything until they have agreed on everything. even though they make some tentative decisions, wait until the end of the road and then put anything together. basically package the deal. on the budget question,

once you have put those pieces together and decide how you -- and it effectively very frankly there are some steps and we did it at andrews air force base, frankly the heart and soul of the bush budget and the agreement that was made him it was also the heart and soul of the clinton budget when that passed. there are some furry red elements. some things written done with regards to limits and enforcement of limits in terms of spending, etc. those are all very effective tools and they ought to be built into this process. if this is going to work, this is going to work, the members up there who have been beating each other up and engaging in a soundbite war are going to have to put all that aside and decide that you're going to go into a room and really try to be honest and truthful with one another. that is going to be a big step. i can say is going to happen, but everybody come from the

president to the leadership to democrats and republicans who are involved in the conference, they're going to have to restore trust in order to get something done. >> thank you. [indiscernible] >> on the next "washington journal," to washington talk about their series of articles called "broken city," highlighting gridlock in washington. the impact of their decisions or later will discuss iran's nuclear program in the meeting last week in geneva. robin wright of the u.s. institute of peace is our guest. live on c- journal"

span. >> shortly before the senate voted on the bill to reopen the government and raise the debt ceiling, republican senator ted cruz of texas polk on the senate floor about why he objected to the bill. if you're a surly or, just before the government shutdown, senator crew spoke on the floor for more than 20 consecutive hours about defunding the healthcare law. here's senator cruz's remarks from wednesday. >> mr. president, i rise today in opposition to the deal that the senate is getting ready to vote on. this is a terrible deal. this deal embodies everything about the washington establishment that frustrates the american people. this deal kicks the can down the road. it allows yet more debt, more deficits, more spending and it does absolutely nothing to provide relief for the millions of americans who are hurting

because of obamacare. to all the young people right now coming out of school who can't find a job because of obamacare, this deal does nothing for them. to all of the single moms who are struggling and being forced into part-time work trying to feed their kids on 29 hours a week because of obamacare, this deal does nothing for them. to all of the hard-working families who are right now getting massive premium increases from their health insurance companies and trying to figure out how they're going to make ends meet with health insurance going up 100, 200, 300% because of obamacare, this deal does nothing for them. to all of the seniors, to all of the people with disabilities who are right now getting in the mail notifications that they are losing their health insurance

because of obamacare, the still -- this deal does nothing for them. mr. president, this fight was always about the american people who are hurting because of obamacare. unfortunately today the united states senate is saying you don't have a voice in washington. you don't have a voice in washington, this is a terrible deal. i urge my colleagues here to oppose it. now, none of us should be surprised that when the senate votes this deal is going to pass. it is going to pass by a big margin. none of us should be surprised, but mr. president, the outcome could have been different. i would ask you, mr. president, to imagine a different world. we saw in the last two months millions of americans rise up, sign a national petition, led up

-- light up the phones to the capital and speak up against the enormous harms obamacare is visiting upon us. -- upon them. we saw the house of representatives stand with courage and listen to the american people. mr. president, i ask you to imagine a world in which senate republicans united to support house republicans. imagine that one piece being different from what we saw. imagine after the house republicans stood together with the american people if all 46 senate republicans have stood together and said, we are united against the train wreck that is obamacare. we are united with the american people, that if president obama's going to give exemptions for big business and members of congress that the american people deserve that very same exemption.

i want you to imagine if senate republicans had stood together and simply supported house republicans and the american people. mr. president, i want you to imagine what would have happened if all 46 senate republicans had united and gone together and said, the house of representatives has passed a bill funding the va. we should fund the va. mr. president, the senate, the majority leader of the senate refused to allow the senate even to vote to fund the va. i want you to imagine, mr. president, all 46 senate republicans, if we had stood together and simply supported the house republicans in saying the house of representatives has voted to reopen our national parks, to reopen our war memorials and the majority leader of the senate refuses to allow the senate even to vote. mr. president, i want you to imagine simply that senate republicans had stood together

and said we support the house republicans in standing with the american people. mr. president, if that had happened, this result, i believe would have been very very different. it is heartbreaking to the american people that senate republicans divided as they did and decided to direct their criticism, direct their attention, direct their cannon and at house republicans those standing with the american people. but yet at the same time, mr. president, to the millions of americans who rose up in the last couple of months, i want to give a word of encouragement. a word of encouragement about the path forward. a couple of months ago, the washington establishment scoffed at the notion that the american people might rise up. that was viewed as silly, parochial, couldn't happen.

a couple of months ago the washington establishment scoffed at the notion that the house of representatives would stand strong saying, we should fund every bit of the federal government, but we shouldn't fund obamacare. and yet, mr. president, we have seen in the last two months has been extraordinary. millions of americans speaking up in overwhelming numbers saying obamacare isn't working. mr. president, the unions are jumping ship. democratic members of the senate and the house went to the president and said we want to be exempted from obamacare. this law isn't working. and it is worth reflecting on how extraordinary it is to see the american people rise up in such incredible numbers and to see the house of representatives engage in what i consider to be a profile in courage. standing with the american

people. now a path forward, the way we are going to stop obamacare, the way we're going to stop the suffering, the harms that are being visited on millions of americans is a path we have seen these past couple of months. the american people rising up -- the answers are not going to come from washington. washington is broken. but the answers are going to come from the american people and so, mr. president, i am today encouraged. i am encouraged by the millions of american people. mr. president, i am today encouraged. i am encouraged by the millions of americans who want to get back to our free market principles, get back to the constitution and stop this train wreck of a law is that is the biggest job killer in this country, that is hurting people all across the country. esther president, it is said that today the united states senate is telling people all across this country who are struggling, who are trying to provide for their kids and who are getting notifications in the

mail, your health care has been dropped. maybe you have an elderly parent and that health care policy is providing for your family. maybe you have children facing debilitating diseases and yet you are getting a notification in the mail. your health insurance has been dropped because of obamacare, mr. president it is said that the u.s. senate says we will do nothing to answer your plight. we created your plate, but we -- we created your plight, but we will do nothing. mr. president, it is sad that when you have james hoffa, the president of the teamsters, saying that obamacare is destroying the health care of millions of working men and women in this country and the families who depend upon them, that the u.s. senate says we are closed for business. the washington establishment has exempted itself so the problems, the suffering of working america is not the concern of the

washington establishment. that is sad, but at the same time i am optimistic, i am inspired but millions of americans who have risen up to eight if the american people continue to rise up, i am confident that in time the u.s. senate will follow the lead of the house of representatives and listen to the american people. that is our job, that is our responsibility. this is a terrible deal today. but it is a terrible deal for the american people. but at the same time the path forward if the american people continue to rise up, we are going to turn this around, we're going to restore jobs and economic growth. we're going to restore the ability of people who are struggling to climb the economic ladder and to achieve the american dream and we are going to stop the number one job killer in this country that is obamacare. mr. president, i rise in opposition to this deal that

does not serve the best interest of the men and women each of us represent. i yield the floor. >> texas republican senator ted -- the senate passed that legislation 81-18. it passed in the house as well, 285-144. >> is marks are about 20 minutes. >> good morning, everybody. please have a seat. last night i signed legislation to reopen our government and a pay america's bills.

because democrats and responsible republicans came together. the first government shutdown in 17 years is now over. the first default in more than 200 years will not happen. these twin threats to our economy have now been lifted and i want to thank those democrats and republicans for getting together and ultimately getting this job done. now, there has been a lot of discussion lately of the politics of the shutdown. but let's be clear, there are no winners here. these last few weeks have inflicted completely unnecessary damage on our economy. we don't know yet the full scope of the damage, but every analyst out there believes it has slowed our growth. we know that families have gone without paychecks or services they depend on. we know that potential home have -- homebuyers have gotten fewer mortgages and small business loans have been put on hold. we know that consumers have cut back on spending and that half of all ceos say that the

shutdown and the threat of shutdown set back their plans to hire over the next six months. we know that just the threat of default, of america not paying all the bills that we owe on time increased our borrowing costs, which adds to our deficit. and of course we know that the american people's frustration with what goes on in this town has never been higher. that is not a surprise. that the american people are completely fed up with washington. at a moment when our economic recovery demands more jobs, more momentum, we've got yet another self-inflicted crisis that set our economy back. and for what? there was no economic rationale for all of this. over the past four years our economy has been growing, our

businesses have been creating jobs and our deficits have been cut in half. we hear some members who pushed for the shutdown say they were doing it to save the american economy. but nothing has done more to undermine our economy these past three years than the kind of tactics that create these kinds of manufactured crises. you don't have to take my word for it. the agency that put america's credit rating on watch the other day explicitly cited all of this, saying that our economy remains more dynamic and resilient than other advanced economies and that the only thing putting us at risk is, and i'm quoting here, repeated brinksmanship. that is what the credit rating agency said.

that wasn't a political statement, that was an analysis of what is hurting our economy by people whose job it is to analyze these things. that also happens to be the view of our diplomats who have been hearing from their counterparts internationally. some of the same folks who pushed for the shutdown and threatened default claimed their actions were needed to get america back on the right track, to make sure we are strong. but probably nothing has done more damage to america's credibility in the world, our standing with other countries, than the spectacle that we have seen these past several weeks. it has encouraged our enemies, it has emboldened our competitors, and it has depressed our friends who look to us for steady leadership. now, the good news is we will bounce back from this. we always do.

america is the bedrock of the global economy for a reason. we are the indispensable nation that the rest of the world looks to as the safest and most reliable place to invest. something that has made it easier for generations of americans to invest in their own futures. we have earned that responsibility over more than two centuries because of the dynamism of our economy and our entrepreneurs, the productivity of our workers, but also because we keep our word and we meet our obligations. that is what full faith and credit means. you can count on us. today i want our people and our businesses and the rest of the world to know that the full faith and credit of the united states remains unquestioned. all my friends in congress understand that how business is

done in this town has to change. because we have all got a lot of work to do on behalf of the american people and that includes the hard work of regaining their trust. our system of self-government does not function without it. now that the government is reopened and this threat to our economy is removed, all of us need to stop focusing on the lobbyists and the bloggers and the talking heads on radio and the professional activists who profit from conflict and focus on what the majority of americans sent us her to do and -- sent us here to do and that is grow this economy, create good jobs, strengthen the middle class, educate our kids, lay the foundation for broad-based prosperity and get our fiscal house in order for the long haul. that is why we are here. that should be our focus.

now, that won't be easy. we all know that we have divided government right now. there's a lot of noise out there. the pressure from the extremes affects how a lot of members of congress see the day-to-day work that is supposed to be done here. let's face it, the american people don't see every issue the same way. but that doesn't mean we can't make progress. when we disagree, we don't have to suggest that the other side doesn't love this country or believe in free enterprise are -- or all the other rhetoric that seems to get worse every single year. if we disagree on something we can move on and focus on the things we agree on and get some stuff done. let me be specific about the

-- about three places where i believe we can make progress right now. first, in the coming days and weeks, we should sit down and pursue a balanced approach to a responsible budget. a budget that grows our economy faster and shrinks our long-term deficits further. at the beginning of this year, that is what both democrats and republicans committed to doing. the senate passed a budget, the house passed a budget and they were supposed to come together and negotiate. and had one side not decided to pursue a strategy of brinksmanship, each side could have gotten together and figured out how do we shape a budget that provides certainty to businesses and people who rely on government, provide certainty to investors in our economy and we would be growing

faster right now. the good news is the legislation i signed yesterday now requires congress to do exactly that, what it could have been doing all along. we should not approach this process of creating a budget as an ideological exercise. just cutting for the sake of cutting. the issue is not growth versus fiscal responsibility, we need both. we need a budget that deals with the issues that most americans are focused on, creating more good jobs that pay better wages. remember, the deficit is getting smaller not bigger. it is going down faster than it has in the last 50 years. the challenge we have right now is not short-term deficits, it is the long-term obligations that we have around things like

medicare and social security. we want to make sure those are there for future generations. the key now is a budget that cuts out the things that we don't need, closes corporate tax loopholes that don't help create jobs, and frees up resources for the things that do help us grow like education and infrastructure and research. these things historically have not been partisan. this shouldn't be as difficult as it has been in past years because we already spend less than we did a few years ago. our deficits are half of what they were a few years ago. the debt problems we have now are long-term and we can address them without shortchanging our kids or shortchanging our grandkids or weakening the security that current generations have earned from their hard work.

so that is number one. number two, we should finish fixing the job -- of our -- let me say that again, we should finish the job of fixing our broken immigration system. there's already a broad coalition across america that is behind this effort of comprehensive immigration reform, from business leaders to faith leaders to law enforcement. in fact, the senate has already passed a bill with strong bipartisan support that would make the biggest commitment to border security in our history, would modernize our illegal immigration system, make sure -- that would modernize our legal immigration system, make sure everyone plays by the same rules, make sure that folks who came here illegally have to pay a fine, pay back taxes, meet their responsibilities -- that bill has already passed the

senate. and economists estimate that if that bill becomes law, our economy would be five percent larger two decades from now. that is $1.4 trillion in new economic growth. the majority of americans think this is the right thing to do. and it is sitting there waiting for the house to pass it. now if the house has ideas on how to improve the senate bill, let's hear them. let's start the negotiations. but let's not leave this problem to keep festering for another year or two years or three years. this can and should get done by the end of this year. number three, we should pass a farm bill, one that american farmers and ranchers can depend on, one that protects vulnerable children and adults in times of need, one that gives rural communities opportunities to grow and the long-term certainty that they deserve.

again, the senate has already passed a solid bipartisan bill. it has got support from democrats and republicans. it is sitting in the house, waiting for passage. if house republicans have ideas that they think would improve the farm bill, let's see them. let's negotiate. what are we waiting for? let's get this done. so, passing a budget, immigration reform, farm bill. those are three specific things that would make you huge -- that would make a huge difference in our economy right now and we could get them done by the end of the year. if our focus is on what is good for the american people. and that is just the big stuff. there are all kinds of other things that we could be doing

that don't get as much attention. i understand, we will not suddenly agree on everything now that the cloud of crisis has passed. democrats and republicans are far apart on a lot of issues. and i recognize there are folks on the other side who think that my policies are misguided. that is putting it mildly. that is ok. that is democracy, that is how it works. we can debate those differences vigorously, passionately, through the normal democratic process, and sometimes we will be just too far apart to forge an agreement. but that should not hold back our efforts in areas where we do agree. we shouldn't fail to act

on areas that we do agree or could agree just because we don't think it is good politics. just because the extremes in our party don't like the word compromise. i will look for willing partners wherever i can to get important work done. there is no good reason why we can't govern responsibly. despite our differences, without lurching from manufactured crisis to manufactured crisis. in fact, one of the things that i hope all of us have learned these past few weeks is that it turns out smart, effective government is important. it matters. i think the american people during the shutdown had a chance to get some idea of all the

things large and small that government does that make a difference in people's lives. we hear all the time about how government is the problem, well it turns out we rely on it in a whole lot of ways. not only does it keep a strong through our military and law enforcement, it plays a vital role in caring for our seniors and our veterans. educating our kids, making sure our workers are trained for the jobs that are being created. arming our businesses with the best science and technology so they can compete with businesses -- with companies from other countries. it plays a key role in keeping food and our toys and our workplaces safe. it helps folks rebuild after a storm. it conserves our natural resources. it finances startups, it helps

to sell our products overseas. it provides security to our diplomats abroad. so let's work together to make government work better instead of treating it like an enemy or purposely making it work worse. that's not what the founders of this nation envisioned when they gave us the gift of self- government. you don't like a particular policy or a particular president? then argue for your position. go out there and win an election. push to change it. don't breakeak it, what our predecessors spent over two centuries building. that's not being faithful to what this country is about.

that brings me to one last point. i've got a simple message for all the dedicated and patriotic federal workers who have either worked without pay or have been forced off the job without pay these past few weeks, including most of my own staff -- thank you. thanks for your service. welcome back. what you do is important. it matters. you defend our country overseas, you deliver benefits to our troops who earned them when they come home, you guard our borders you protect our civil rights, you help businesses grow and gain foothold in overseas markets. you protect the air we breathe and the water our children drink. you push the boundaries of science and space and you have spent hundreds of thousands of

people each day to the glories of this country, thank you. what you do is important. don't let anybody us tell you -- don't let anybody else tell you different, especially the young people who come to the city to serve. they believe that it matters. you know what? you are right, it does. those of us who have the privilege to serve this country have an obligation to do our job as best we can. we come from different parties, but we are americans first and that is why disagreement cannot mean dysfunction. it can't degenerate into hatred. the american people's hopes and dreams are what matters, not hours. ours. our obligations

are to them. our regard for them compels us all, democrats and republicans, to cooperate and compromise and act in the best interests of our nation, one nation under god, indivisible, with liberty and justice for all. thanks very much. >> and >> former speaker of the house tom foley died on friday after serving in congress for 30 years. after losing reelection in 1994, he came to the floor to say goodbye to his colleagues. in a symbolic gesture, speaker foley, a democrat, gave a speaker's gavel to retiring republican minority leader bob michael never served in the majority. mr. foley spoke about the need for civility and cooperation in

washington. here's a look back from the c- span video archives. this is about 10 minutes. [applause] askhe chair would like to my distinguished republican colleague if he would take the chair. >> i'm happy to leave yield to the distinguished speaker. would the young man please take the chair? [applause] [applause] [whistling] [applause]

>> house will be in order. [applause] [gavel pounds] >> let's move it along. >> the chair yields to the distinguished speaker of the house for whatever comments and for however long. >> mr. speaker, have to remind you to put the question on the resolution. >> would you prefer that i do that before you speak on behalf of your own resolution, mr. speaker? [laughter] always better to get[laughter]

[laughter] the resolution passed before the speech. [laughter] >> without objection the resolution is passed. [applause] >> thank you. i want to say it is a great pleasure for me to address you, mr. speaker. and to say that although you have said and my good friend dave bonior said it has been a very touching thing for me and particularly to be here on this last day of the 103rd congress with so many of my colleagues and to have a chance to say to you, all of you, republicans and

honored itor the and has been for me to serve with you. my congressional career has come to a close and i leave this congress with a sense of satisfaction and gratitude, gratitude to so many, to my constituents who gave me their confidence for so many years and gave me the great honor that we all know of representing so many of our fellow citizens in this central place of american democracy, the house of representatives. to principally my wife who has served without pay or compensation as my chief of staff for so many years, by giving unselfishly of her time to theent to me and people of my district and our district and our state.

also to all of my colleagues, past and present, who have honored me by allowing me to serve with them. this institution is a great institution. it is unfortunately not always seen in its full and proper dimensions by our fellow citizens. i think that is a great tragedy because of all the institutions of our public life, it is in the congress and in -- and particularly in the house of representatives where this and concernsgment and ambitions and decisions are made for the future. we have a task i think all of us, those in public life and those who leave it, to ensure that the true dimension of the work that is done here is ,nderstood and appreciated

because other countries are presidents in courts and magistrates, but it is this institution which for so many of the people of the world has represented a congress, the they come together to speak the voice of american democracy. is foundoice that echoing and resounding throughout the world today. american democracy has been a symbol of liberty and freedom for so many hundreds and ,undreds of millions of people so we have a special responsibility to ensure that our own citizens do not fail to understand the value and importance of this, there house of representatives heard so in leaving i thank you and i salute you and i wish you all, those of you who are living with me and those who will be part of the

hundred fourth congress, every success in the future. follow in thisho great responsibility that they will have some of the same satisfactions and some of the great opportunities which i have had and for which i will always be deeply deeply grateful. thank you, goodbye. [applause]

[applause] [applause] >> speaker, if i might exercise the prerogative of the chair for just a moment, to my dear to say colleagues on both sides of the speaker, thank. you for giving me the opportunity to wield this gavel at least one time and actually sit in the chair. it was something to behold. [applause]

>> but more important, the speaker just spoke with great into thisand insight institution and what we do here as a body. i just want to say to all the members on both sides of the aisle how much i appreciate the camaraderie and cordiality that i have enjoyed during my tenure in this body and all those wonderful good things that have happened to me this past year and your acknowledgment from time to time. it is overwhelming. i just want you all to know some of us chose to leave voluntarily, some obviously did not. but that is the way the system works. the more important thing is i guess those memories that we take away from this body,

hopefully they will always be cherished ones of those wonderful days we spent as a member of the u.s. congress. thank you, each and every one and i give back to the distinguished speaker. [applause] >> former speaker of the house tom foley. he died on friday at the age of 84. >> c-span, we bring public affairs events from washington directly to you, putting you in the room at congressional hearings on the white house events, briefings and conferences, and offering complete gavel to gavel coverage of the u.s. house, all as a public service of private industry. we are c-span, created by the cable industry 34 years ago and funded by your local cable or satellite provider. now you can watch us in hd.

court heard oral argument tuesday on a michigan voter approved ban against considering race or gender in public education admissions. it was in response to the supreme court's 2003 grantor versus bullinger decision when the court upheld the use of race as one factor of many that law schools can use to ensure educational diversity. the michigan ban, which was approved in 2006, amended the state constitution to prohibit discrimination or preference for treatment in public education, government contracting and public employment. the sixth circuit court of appeals found the ban unconstitutional. the court is expected to render a decision sometime before the end of the term next year. >> we will hear argument next today in case 12-682, should he versus the coalition to affirmative action.

whether in this case is a michigan constitutional provision requiring equal treatment violates equal protection. the answer reasons is no. first, unlike the law issue in hunter in seattle, section 26 does not repeal an antidiscrimination law, but instead it repeals preferences and thus it is in private -- and thus it is an impediment to preferential treatment. corrected at nothing to do it in antaeus discrimination law, it had to do with it remedy de facto segregation. why isn't this identical to seattle? >> it is not >> justice sotomayor, it's not identical because of the remedy issue. in seattle, they were trying to create, in the court's words, equal educational opportunity by imposing a remedy that would result in equality in the schools. >> you don't think that the proponents of affirmative action are attempting to do the same thing? one of the bill sponsors here said that this constitutional amendment will bring back desegregation in michigan, and it appears to have done just that. >> well, there's two points to that question and i'll address them both. first on the merits, under grutter, the point of

preferences in university admissions cannot be solely the benefit of the minority, because under grutter, it's supposed to benefit the campus as a whole through diversity, and which we think is a laudable goal. it's a forward-looking action, not a backward-looking action, to remedy past discrimination. and we know that because under grutter, you can use preferences whether or not there's de facto or de jure segregation, simply to get the benefit. but with respect to your -- your point about the university of michigan and what has or has not happened here, two thoughts on that. first, we have the statistics that we discuss in our reply brief where it's not clear that that the diversity on michigan's campus has gone down. but our main point on that is -- is not those numbers, but the fact that there are other things that the university of michigan could be doing to achieve diversity in race-neutral ways. for example, we know that --- >> i thought that in grutter, all of the social scientists had pointed out to the fact that all of those efforts had failed. that's one of the reasons why the -- i think it was a law

school claim in michigan was upheld. >> well, there's social science evidence that goes both ways. but i want to focus on the university of michigan because there's two things that they could be doing right now that would get them closer to the race-neutral goal. the first thing is that they could eliminate alumnae preferences. other schools have done that. they have not. that's certainly one way that tilts the playing field away from underrepresented minorities. the other one, and this is really important, is the focus on socioeconomic -- >> it's always wonderful for minorities that they finally get in, they finally have children and now you're going to do away for that preference for them. it seems that the game posts keeps changing every few years for minorities. >> given the makeup of michigan's alumnae right now, certainly that playing field would be tilted the other way. the other thing that we practice is socioeconomic diversity. and at the university of michigan, there was a stat in "the wall street journal" just two days ago that if you measure that by pell grants, the number of students who are eligible for those, at the university, the number of students who have pell grants is half what it is at

more progressive institutions like berkeley and the university of texas at austin. so the university of michigan could be trying harder. but our point isn't to get into a debate about whether preferences are a good or bad thing, because that's not what this case is about. the question is whether the people of michigan have the choice through the democratic process to accept this court's invitation in grutter to try race-neutral means. >> mr. bursch, could you go back >> well, while you're on seattle, can you -- i have difficulty distinguishing seattle. one factual difference is that there was a school board there, a directly-elected school board elected for a short term of years. here there's a board of trustees. is that -- is that the distinguish -- a distinguishing factor in the case in which a principal distinction could be made? >> i think it's a distinguishing factor. you know, kind of sticking with how hard is it under the new political process. and i think the chart that we have on page 17 of our reply brief explains that it's really easier to change race-based

admissions policies now than it was before section 26. and that's one basis. but i think the more fundamental basis is to say, you know, what seattle is about. and -- and if you indulge me, i'm going to suggest that seattle could mean one of three things. one of those i think you should clearly reject, and then the other two i think are --are possible interpretations that you could adopt. when seattle talks about racial classifications, it focuses on laws that have a racial focus. now, right out of the box, equal protection is about people, not about laws, but even more fundamentally, that cannot be the right test. at a minimum, that part of seattle has to go because if you had a race-neutral law, like michigan's equal protection clause, which forbids discrimination on the basis of race or sex -- you know, it mirrors the concept of the federal clause -- that itself would be subject to strict scrutiny because it has a racial focus. so we know that can't be right and that's respondent's position. so that leaves you two other choices. and one would be an incremental change to this political

restructuring doctrine; the other would be a more aggressive change. the incremental change would be to interpret racial classification in seattle as meaning a law that, one, repeals an antidiscrimination provision, as it did in hunter and seattle; and two, removes that issue to a higher level of the decision- making process. and because michigan's law requires equal treatment, it eliminates preferences, not an antidiscrimination law. that would be a way that you could keep seattle and hunter as a viable doctrine, and still rule in our favor on this case. >> i don't see the distinction. bussing could be viewed, and was viewed, to benefit only one group. it was a preference for blacks to get into better schools. that's the way the case was pitched, that was its justification, and to integrate the society. affirmative action has the same gain. we've said that in fisher -- it should be to diversify the population, so it favors diversity as opposed to desegregation.

>> right. but there's a difference between favoring diversity as an abstract concept on campus, which grutter clearly allows, and remedying past discrimination, which was the point of the bussing in seattle. and that's why we're really in a post-seattle world now, because under -- >> but there -- there was no proof that there was any de jure segregation in seattle. >> that's correct because, at the time of seattle's decision, we didn't yet have parents involved, and so there wasn't a strict scrutiny test that was being applied to that bussing program. and so you didn't have to go as far as you would today if you wanted to uphold that same bussing program. but what really -- what ties this case up -- >> but you're saying there are three things. one, the first you reject. >> yes. >> the law was a racial focus. >> it can't be because of racial focus. >> ok. and the second was an incremental improvement in the democratic process -- or democratic responsibility? >> that, plus -- >> responsiveness, i guess. >> right. that, plus repealing an antidiscrimination law. i think that's a narrow way -- >> and was there a third, did

you say? >> well, the third way is really to -- to look at racial focus and say that's wrong, and maybe this whole doctrine needs to be reexamined. and the way that you could do that is to look at what seattle and hunter are really doing, which is falling right into the washington v. davis line of cases. both of those cases could have been resolved by saying, one, there's a disparate impact; and two, given the facts and circumstances in 1969, akron, ohio and 1982, seattle, washington, that there was discriminatory animus based on race. and if you did that, you could reconcile those cases with washington v. davis and the entire line of equal protection jurisprudence this court has used since that time. >> but there is such a claim in this case, it just wasn't decided -- wasn't there a racial animus, that the reason for proposition 2 was to reduce the minority population? the court of appeals didn't get to that, but there was such a claim. >> there was a claim, but, your honor, there was also a decision.

and the district court was really clear on this. keep in mind that this was a summary judgment posture, and the district court concluded properly that there wasn't even a question of material disputed fact with respect to intent. this is at pages 317 to 319 of the supplemental appendix petition. and that's because the primary motivation for section 26 included so many nondiscriminatory reasons, including the belief of some in michigan that preferences are themselves race discrimination. others that -- race-neutral alternatives is actually a better way to achieve campus diversity that results in better outcomes for underrepresented minority students. some could believe that the preferences result in mismatch, as justice thomas is -- >> that, it seemed to me a good distinction for hunter and mulkey v. reitman, which the briefs don't talk much about. >> yes. >> but not necessarily a distinction in seattle because seattle you could argue, well, there are other methods that are less racially divisive. >> and i think -- and i would

like to come back to reitman because that fits into this framework, too. but i think if you have any question about what seattle really meant, the place to look is the later decision in cuyahoga falls, because in cuyahoga the court specifically mentions, quote, "the evil of discriminatory intent present in seattle." that's at pages 196 to 197 of the opinion. and it also talks about the decisionmakers' statements as evidence of discriminatory intent in the hunter case, at page 195. and so i think if you look at cuyahoga falls, it has already done some of the work for you if you are going to take the more conservative route and say there's intent. >> but i don't see how the argument would be any different here. one of the main sponsors of this bill said it was intended to segregate again. the voters in seattle were not all filled with animus; some of them just cared about their children not leaving -- not having outsiders come in. i mean, there's always voters who have good intent.

>> that's true and there is always some bad apples, too. we don't dispute that point. but -- but here you have a district court holding that there is not even a material question of fact with respect to animus, because there are so many reasons that could be advanced, legitimate reasons again, about mismatch and about the benefits of racial -- >> in seattle as well. so it wasn't the issue of animus that drove seattle. >> i think it's much harder in seattle, your honor. but to fit reitman into this discussion and what i would consider the more conservative way to deal with seattle and hunter, one that would preserve those as a doctrine, is to think about how reitman would come out under that test. in reitman, of course, you had antidiscrimination laws just like in hunter at the local level, which were then repealed by a state constitutional amendment. and the political restructuring doctrine had not yet been invented yet, and so what the court did is it relied on the california supreme court's finding that there was discriminatory animus in striking down those antidiscrimination laws. i think that if you view hunter and seattle similarly as cases

where if you repeal an antidiscrimination law, as opposed to one that requires equal treatment, that's the narrow way to cabin those cases and ones that -- a way that would allow those cases to survive, yet to distinguish section 26. one point that we haven't discussed much is the democratic process, and it's important that i emphasize that, obviously, the use of race-based and sex-based preferences in college education is certainly one of the most hotly contested issues of our time. and some believe that those preferences are necessary for campus diversity. others think that they are not necessary, and in fact that we would have a much better world if we moved past the discussion about race and instead based it on race-neutral criteria. >> mr. bursch, can i ask you to go back to the very first thing you said, because i didn't get your -- your point. the question -- what impact has the termination of affirmative action had on michigan, on the enrollment of minorities in the

university of michigan? do we have any clear picture of that, what effect the repeal of affirmative action has had? >> yes, justice ginsburg, we have a muddy picture. as we explain in our reply brief, the first thing that we have is the actual statistics for the first full year after section 26 went into effect. this is 2008. and what we find is that the number of underrepresented minorities as part of the entering freshman class at michigan as a percentage changed very little. it went from about 10-3/4 percent to about 10-1/4 percent. then it gets very difficult to track, because, following the u.s.census's lead, in 2010 the university of michigan stopped requiring students to check only a single box to demonstrate what their race or ethnicity was and moved to a multiple checkbox system. and justice sotomayor, when you see in the amici briefs that there has been a dramatic drop, for example, in african american students on campus at the university of michigan, those

numbers don't take into account that people who before were forced to check a single box now could be checking multiple boxes. and if you fold in the multiple checkbox students, the number of underrepresented minorities on campus actually comes out higher. now, we don't know what those numbers are, because you could have a student who might be white and asian and they would not be considered an underrepresented minority, and they could be in there; but we know that the numbers are a lot closer than when you just look at single checkbox students in isolation. >> so what do we do with the statistics from california? an amici from california, their attorney general, has shown, another state with a similar proposition, has shown the dramatic drop. >> well, the statistics in california across the 17 campuses in the university of california system show that today the underrepresented minority percentage is better on 16 out of those 17 campuses. it's not at berkeley; they haven't gotten there yet; but it's better on the rest.

and by going to race-neutral criteria, what they discovered was that underrepresented minority students have higher gpa's, that they take more technology, engineering and math classes, and they have a graduation rate that is 20% to 25% higher than it was before california's proposition 209. you can see similar effects in texas in their top 10 percent program before it was modified. and not only did it have those positive impacts, but it actually increased minority performance at social- economically disadvantaged high schools, where the students said hey, if i can only get into the top 10 percent of my class, i can be in the university of texas at austin. and again, we can all agree that diversity on campus is a goal that should be pursued. what the california and texas experiences have demonstrated is that there are good, positive reasons why the voters might want to try a race-neutral alternative. >> so why is it ok to have taken away -- not ok to have taken away the decision to have bussing from the local school

boards, the people on the ground, but it's ok to take that power away from the people on the ground here, the board of regents, who are also elected like the school board was in seattle? >> because as -- >> the general population has feelings about many things, but the only decision that they're -- educational decision that they are taking away from the board of regents is this one -- affirmative action. everything else they leave within the elected board of regents. >> you've put your finger on the fulcrum of respondents' best argument, that only race as a factor alone has been removed. and there their argument is exactly backwards, because it's not michigan or section 26 that single out race.

it's the equal protection clause itself, because, justice sotomayor, if a student wants to lobby for an alumni preference or a cello preference and put it in the state constitution, strict scrutiny is never applied to that effort. but when you try to get a preference based on race or not based on race in the federal -- or the state constitution, strict scrutiny is always applied. and so it's the equal protection clause which is making a differentiation between race and everything else. and that's why this court in crawford, again decided the same day as seattle, at page 538, recognized, quote, "a distinction between state action that discriminates on the basis of race and state action that addresses in neutral fashion race-related matters." and section 26 falls into that latter category. >> you have been asked several questions that refer to the ending or termination of affirmative action. that's not what is at issue here, is it? >> no, and i'm glad that you brought that up, chief justice roberts, because affirmative action means a lot more than simply the use of race or sex- based preferences in university admissions. the -- article i, section 26,

only focuses on this one aspect of university admissions. now, another important point to understand is that section 26 is not all about university admissions. this is actually a much broader law that applies not just to race and ethnicity, but also to sex and other factors, and that affects not just universities but also public contracting and public employment. this was a broad-based law that was primarily motivated by the people of michigan's decision to move past the day when we are always focused on race, exactly as grutter invited the states to do. and you can -- you can see how that discussion gets mired when you look at some of these statistics that we have been talking about. is someone who has multiple racial boxes checked more or less diverse than someone who only has one box checked? is someone who comes from outside the country -- say from mexico -- >> you've done something much more. you are basically saying, because fisher and grutter -- we've always applied strict scrutiny --

>> correct. >> all right. so it's essentially a last resort, within some reason. but what you are saying, if all those other measures fail, you're by constitution saying you can't go to the remedy that might work. >> no, that's not what we are saying. >> well, but you're -- but this amendment is stopping the political process. it's saying the board of regents can do everything else in the field of education except this one. >> well, again, it actually runs the other way, because equal protection is what singles out race-focused measures for strict scrutiny. but what we're saying is under grutter, race preferences are barely permissible. it cannot be unconstitutional for the people to choose not to use them anymore, to accept this court's invitation in grutter, to move past the discussion about race and into a race- neutral future.

>> what would you do with a constitutional amendment that said pro-affirmative action laws, and only those, require a three-quarters vote of the state legislature? >> well, under what we're going to call the narrow "save hunter and seattle," something like that would be unconstitutional because it removes an antidiscrimination provision and moves it to a higher level of government. now, one of the problems with keeping that doctrine is it could also work the opposite way. you know, pretend that the political climate in michigan was turned on its head and that universities had agreed that they were no longer going to use race or sex in admissions and that it was the state electorate, either in the legislature or in the constitution, which imposed a grutter plan on everyone. well, under hunter and seattle, that would have to go because that law removes an antidiscrimination provision and moves it to the higher level. and so that would be one reason why you might want to take the

washington v. davis approach and consider whether there's discriminatory animus based on race. but, you know, in either of those cases, i think you can either, you know, pare down the doctrine or get rid of it entirely and distinguish our case from it. but the one point that i want to leave you with today is that the core of respondent's arguments that somehow a racial classification can be any law that has a racial focus, cannot be the right test. no matter what, that portion of seattle and hunter has to go, because equal protection is about protecting individuals, not about protecting laws; and even nondiscriminatory race- neutral laws that have a racial focus would fall under their racial focus test. you know, the hypothetical we give in our briefs on that, besides a state equal protection clause, would be the federal fair housing act because it references race, it has a racial focus, in the words of seattle and hunter, and it has the ability of preventing anyone from lobbying for preferences based on their race or sex at lower levels of the government,

either state or local. so under their theory, the federal fair housing act would have to be applied under strict scrutiny. and their only response to that in the brief is that -- well, the supremacy clause takes care of that problem. and we all know supremacy doesn't kick in until you first determine that the federal law itself is constitutional, and it wouldn't be under their theory. so -- so what we're asking you to do is eliminate that portion of hunter and seattle that suggests that a law's racial focus is the sine qua non of a political restructuring doctrine test and to either -- >> mr. bursch, isn't -- >> yes. >> isn't the position that was taken in seattle derived from a different view of the equal protection clause? i mean, strict scrutiny was originally put forward as a protection for minorities -- a protection for minorities against hostile disadvantageous legislation.

and so the view then was we use strict scrutiny when the majority is disadvantaging the minority. so you do, under the carolene products view, you do focus on race and you ask, is the minority being disadvantaged? if that were the view, then i suppose we would not be looking at this, well, the criterion is race and wherever the disadvantage falls, whether a majority or minority, it's just the same. that wasn't the original idea of

when strict scrutiny is appropriate. so if we were faithful to that notion, that it is -- measures a disadvantage the -- the minority that get strict scrutiny. >> well, two thoughts on that, justice ginsburg. first, under grutter, this court made crystal clear that a grutter plan is not about which minority group is being advantaged or disadvantaged. it's supposed to benefit the campus as a whole. and to the extent the claim is that preferences benefit certain classes of minorities and not others, you know, for example, it benefits african americans and latinos, but not asians, even though they're both discrete and insular underrepresented groups, that -- then it fails under grutter. it can only be something that benefits everybody. but more fundamentally, going back to your question about the origin of the doctrine, i think it's really important to understand why we have hunter, because hunter, remember, was decided before washington v. davis. and when you look at the face of the law in akron, ohio in hunter, there's nothing in there that would trigger strict scrutiny. and so this court was searching

for another way to -- to strike down a law that removed an antidiscrimination provision and made it more difficult to reenact at the higher level of the political process. it needed something to fix that. and our point is you can either construe it to do exactly that, that only antidiscrimination laws being struck down and moved to a higher level can satisfy a political restructuring doctrine, or you can look at it differently. you can say now that we've got washington v. davis and we all know what the intent was in akron, that that is a simpler way to address this -- this problem and we really don't need the political restructuring doctrine at all anymore. but the reason why we had the doctrine in hunter is because strict scrutiny did not apply. >> you said that the district court found it was clear that there was no --there was no

discriminatory intent, but that wasn't reviewed on appeal. >> no, it was not. but it wasn't a finding. it was actually more than that. it was at the summary judgment stage. the district court correctly concluded there wasn't even a question of disputed material fact as to whether intent was the primary motivation of the electorate. unless there are any further questions, i will reserve the balance of my time. >> thank you, counsel. mr. rosenbaum. >> mr. chief justice, and may it please the court, let me begin, justice kennedy, with the questions you raise and then come to the question that chief justice roberts raised. to begin, justice kennedy, there's no way to distinguish the seattle case from this case nor the hunter case. both those cases have to be overruled. here is why the seattle case is identical to this case. both issues -- both cases involve constitutionally permissible plans which had as their objective obtaining diversity on campuses. seattle was a k-12 case. this case is a higher education case. but in both instances, the

objective was to obtain diversity. no constitutional mandate to relieve past discrimination. rather, in fact, as the court said, seattle, tacoma, and wasco were attempting to deal with de facto segregation. >> is that an accurate description of seattle? i thought that in seattle, before the school board adopted the bussing plan, the city was threatened with lawsuits by the department of justice, by the federal government, and by private plaintiffs, claiming that the -- the previous pupil assignment plan was -- involved de jure segregation. isn't that -- isn't that correct? >> that's correct with respect to at least one of the districts, justice alito. but in terms of the program itself, there's no dispute that it was done pursuant to a plan for de facto segregation. moreover, the question you asked, justice kennedy -- >> i don't understand the answer to that question. as to seattle itself, is it not the case that they were threatened with litigation? >> yes, but there'd been no finding, justice alito, of de

jure segregation. >> and isn't it correct that the district court found that there was de jure segregation? >> that is not correct. >> it didn't? >> there was -- there was no finding whatsoever that there had been de jure segregation and that there was a constitutional imperative to correct that desegregation. it was an absolutely identical situation. and regarding the accountability, your honor is correct that in seattle what we were dealing with was an elected school board and here, as the michigan brief says, as the wayne state brief says, as the court specifically found at pages 326a and 327a of the record, this is a political process in which the regents were elected, have at all times maintained plenary authority over the admissions process itself, and that -- >> well, there are two things. number one is it delegated to the faculty. and number two, they're election they're elected only rarely and

in staggered terms. >> that -- that -- that is no question that that's correct, your honor. but the -- the ordinary process itself is a politically accountable process. that's what the district court found when it looked at how the system worked. and in fact -- >> what if the -- what if the -- the board delegated to the various universities the authority to develop their own admissions programs? >> it couldn't alter -- i'm sorry, chief roberts. >> and they did, and then after several years they decided, you know, we don't like the way it's working; they're adopting too many racial preference programs; we're going to revoke the delegation. >> absolutely fine. >> why is that any --any different? >> because the difference is that in the seattle case, in this case, and in the hunter case, what's going on is a change from the ordinary political process, which your honor perfectly described. they can change it today. they can go to a -- an affirmative action plan today, repeal it tomorrow, come back. >> so if there were a provision in the michigan constitution that says the board of regents is authorized to enact these programs, in other words delegated from the people in the constitution to the board, and then the people change the delegation by saying, no, it's no longer -- we're no longer going to leave that up to the

board, we're going to make the decision ourselves in the constitution, how is that any different? >> it is different, your honor, because of the racial nature of the decision. under their theory, under their theory, the people of the state -- of a state could amend their constitution, put in the legislature two rooms, one for racial matters, one for all other sorts of matters, and say to any entrant who wants to enter that first room -- you may do so, but first you have to pay an exorbitant cover charge and then you have to mount multiple stairs, flights of stairs, just to begin the process of enacting constitutionally permissible legislation. or think about it in a desegregation case. a student comes in -- two students come into the admissions committee. one says -- and the admissions committee says -- we have one question for you, one question for you since you're here to talk about a legitimate -- a legitimate factor in pursuit of diversity. here's the question -- do you want to talk about your race, your race in the context of other factors?

and if the answer is yes, that student is shown the door, told go raise between $5 and $15 million, repeal prop 2 and then you can come back to make -- make the case. whereas the student who says, no, i've just got another legitimate factor, maybe geography. maybe alumni confections -- connections, whatever that is, that person is permitted to make the case. it is a racial distinction. now, chief justice roberts, you're certainly onto something in terms of are there race- neutral methods to get this done? of course there are. the state constitution itself could be altered so that a different committee or a different set of individuals could -- could make the decision that they don't like the way the regents are doing it. or they could do it the old- fashioned way, the way that the politically accountable system works, which is to say, we are going to work at these universities, that's how affirmative action involving race happened in the first place. that's at pages 270 to 271a and 282a to 293a.

they worked for years to make that happen. >> well, i thought the whole purpose of strict scrutiny was to say that if you want to talk about race, you have a much higher hurdle to climb than if you want to talk about something else. now, you can argue that strict scrutiny should only apply to minorities and not to students who are not minorities, but i thought the court decided that a long time ago. >> exactly. >> so i don't know why that's a hard question that you asked about the student who says, i want to talk about race. what if it's a white student who comes in and says -- i want to talk about race. i'm white and therefore you should admit me, you should give me preference. the state can't say, no, we don't want to hear that? >> the state can say, we don't want to hear that whether it comes from a white person or a black person or whomever, if in fact, they are not doing it on a race-specific basis. you're exactly right, of course, about strict scrutiny. and the programs in this case, indeed, the only programs in this case that are effective, are those that have passed strict scrutiny -- >> well, i don't understand your answer then. if the student -- one student comes in and says i want to talk about how well i play the cello, all right, we'll listen to that.

i want to come in and talk about why i as a white person should get a preference; you have to listen to that because you're listening to the -- to the talk about the cello, too? >> you do, your honor, when the program has passed the strict scrutiny test that we're talking about. and that's the only sort of program that is at issue in this case. of course you're correct. if it is a gratz type program, if it's unconstitutional, if it's a quota system, you don't have to listen to anybody talk about race. but we are only dealing with constitutionally permissible programs. why it is impossible, impossible to distinguish seattle? and this argument about hunter, page -- page 389 of the hunter decision is the reason hunter was decided. it's not a washington v. davis case. >> well, i'm not sure i understood the answer you gave to the chief justice's hypothetical. maybe i misunderstood the hypothetical. suppose the board of regents have a rule, it's written, it's a rule, that the faculty makes a

determination on whether there should be affirmative action. >> yes. >> five -- and the faculty votes for affirmative action. three years later, the board of trustees said we're abolishing the rule, we're doing that ourselves. violation? >> assuming that the regents say that's fine, no problem whatsoever, no problem whatsoever. that's the ordinary political process. >> so the -- so the regents can take it away from the faculty? >> the regents have plenary -- >> but can the legislature take it away from the regents? >> not under the michigan constitution, because the michigan constitution -- >> no, no. hypothetical case. >> ok. under -- who's got the authority here? the -- the legislature can take it away. that's not a problem in a -- in a situation where that's part of the ordinary process. >> but then the voters can't take it away. at what point is it that your objection takes force? i just don't understand -- i just don't understand -- >> where there is -- >> the declension here -- >> my apologies, your honor. >> or the crescendo, whatever you call it. [laughter] >> both are music to my ears. the point, justice kennedy, is

that the --the people of the state have multiple options available to them if they don't like the way the universities are operating. but the one option they don't have is to treat racial matters different from all other matters. the example that you gave -- >> that applies in the chief justice's hypothetical or my revision of it as between the board of regents and the faculty or between the faculty and the legislature. >> exactly. and the problem --the problem that the restructuring process gets at, because of the particular concern that this court has shown with respect to the political process, that the political process itself not become outcome determinative; that the political process itself be a place where we can air these discussions, but not create it in a separate and unequal way to make the -- to actually make the decision itself through the process. so -- >> why is -- why is the faculty administration, a faculty decision, any less outcome determinative than what the voters would say? i -- i think there would be people that might disagree with your empirical assumption. >> then i'm not explaining it

clearly. the first -- the -- when the faculty makes the decision, justice kennedy, that's part of the ordinary political process. nobody's allowed to win all the time. no one has to win all the time. no one has to win all the time. whatever it is, it is. that's the ordinary political process. that's how we use the political process. the problem with -- with mounting a racial classification within the constitution itself is that then -- that takes the ordinary political process to the extraordinary political process. that's -- >> so i mean, you could say that the whole point of something like the equal protection clause is to take race off the table. is it unreasonable for the state to say, look, race is a lightning rod. we've been told we can have affirmative action programs that do not take race into account. socioeconomic diversity, elimination of alumnae preferences, all of these things. it is very expensive. whenever we have a racial classification, we're immediately sued.

so why don't we say we want you to do everything you can without having racial preferences. now, if the litigation determines that we're required to have racial preferences, this statute has an exception and -- and allows that. but starting out, we want to take race off the table and try to achieve diversity without racial preferences. >> the problem, your honor, as this court stated as recently as last term in the fisher case, is that under the equal protection clause race is not all the way off the table. and the problem with proposal 2 is that the substance and the message that it communicates is that because of the separate and unequal political track that is created with respect to the extraordinary steps that have to be taken, the message is that, even where race is being utilized as one of many factors in a constitutionally permissible way, the message that is being communicated is that all uses of race are

illegitimate, all uses of race are -- are off the table, that "race" itself is a dirty word. >> why -- why doesn't the fourth amendment violate the rule you're saying -- or the 14th amendment violate the rule that you're proposing? i mean, i'm a minority and i want laws that favor my minority. not just in university -- everywhere. my goodness, i can't have that through the normal legislative process. i have to get a constitutional amendment to do it, right? >> that is correct, your honor. >> well, so i guess -- i guess that on this subject of equal treatment of the races, we can eliminate racism just at the -- at the legislative level, can't we? >> your honor, the underlying basis of the entire strict scrutiny doctrine in the 14th amendment is to preclude the government, preclude the legislative and executive

branch, from making those determinations as absolute determinations. the 14th amendment sets the standards and the criteria by which we measure that. of course you're correct. that's what the 14th amendment does. it sets what the rules are in terms of how race is utilized. but what the grutter case said -- >> and you can't change those rules by normal legislation, correct? >> that is correct. >> so if you're a minority that wants favored treatment, you're just out of luck. >> you have to use the ordinary political process. and that's all we're saying. >> no, but the constitutional amendment is not the ordinary political process. >> but the -- but the fact that it's a state constitutional amendment underscores my argument, which is that -- that in order for the -- for a -- the minority or any individual, and white, minority, whatever -- whatever the individual is, to say i want the same rule book, i want the same playing field, the problem with proposal 2 is that it creates two playing fields. >> if proposal 2 had been in the michigan constitution before any affirmative action program was adopted, would the result be the

same? >> it would, your honor, because it would be building in this explicitly facial racial classification into the state constitution. the problem are the separate and unequal systems that are being used to deal with race. and separate and unequal, under the 14th amendment, shouldn't come within ten feet of race. >> it's not a racial classification. you should not refer to it that way. >> it is a racial -- >> it's the prohibition of racial classifications. >> no, your honor. >> every prohibition of racial classification is itself a racial classification? >> no, your honor. the problem with proposal 2 is that it is -- just as in hunter, just as in hunter -- it is an explicitly facial racial classification. it singles out race for different treatment. my goodness, this was borne -- this campaign started three days after grutter itself. the author said the purpose of it was to get rid of racial preferences. >> well, if that's how you're using racial classification, i thought it meant, you know, it's directed at blacks or asians -- >> no. >> or -- no.

in that sense, the 14th amendment itself is a racial classification, right? >> well, it sets the standard -- >> in that sense, the 14th amendment itself is a racial classification. no? >> i don't agree with that, your honor, because i'm measuring it as a racial classification by the 14th amendment. and that comes back to justice ginsburg's argument. his argument, his revisionist history of hunter, his -- was -- was about motive. but, your honor, that had nothing to do with the problem in this case. when the court looked -- when the district court looked -- may i finish my answer, chief justice roberts? >> yes. >> when the court looked at this particular issue, the concern was the way that it racially divided the political process itself. what he is saying is that, well, there may be all sorts of motives. that's a rational basis test, and that has nothing to do with the racial classification. the definition i'm using, justice scalia, is this court's definition of a racial classification, for which all sorts trigger strict scrutiny. thank you very much. >> thank you, counsel.

ms. driver? >> mr. chief justice, and may it please the court, we ask this court to uphold the sixth circuit decision to reaffirm the doctrine that's expressed in hunter-seattle, and to bring the 14th amendment back to its original purpose and meaning, which is to protect minority rights against a white majority, which did not occur in this case. >> my goodness, i thought we've held that the 14th amendment protects all races. i mean, that was the argument in the early years, that it protected only -- only the blacks. but i thought we rejected that. you -- you say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities? >> i think it is -- it's a measure that's an antidiscrimination measure.

>> right. >> and it's a measure in which the question of discrimination is determined not just by --by power, by who has privilege in this society, and those minorities that are oppressed, be they religious or racial, need protection from a more privileged majority. >> and unless that exists, the 14th amendment is not violated; is that right? so if you have a banding together of various minority groups who discriminate against whites, that's ok? >> i think that -- >> do you have any case of ours that propounds that view of the 14th amendment, that it protects only minorities? any case? >> no case of yours. >> some people think that there is a difference between the plus and the minus. some judges differ on that point. some agree sort of with you, and

some agree sort of not. all right? let's think of those who agree sort of, and then i have a question. and you know this area better than i. so think of grutter. grutter permits affirmative action. think of the earlier cases. they permitted affirmative action where it was overcome, the effects of past discrimination, but probably not otherwise. now, that's what i want to know. are there areas other than education where affirmative action would not be forbidden to achieve a goal other than overcoming the effects? have you got the question? and does an answer come to mind? >> i think that affirmative action programs could -- could be permissible under employment. for instance -- >> ok. so there are a set. >> that's right. >> fine. if there are a set, what i -- what i'd like you to explain, if

you can take a minute, is think of how a city is set up. there are a vast number of administrators. there are a vast number of programs. it could be an administrator somewhere says he'd like to give a preference, maybe for good reason. but then the city council votes no, because there are other ways of doing it, by, you know, first come, first served or some other criteria that doesn't use race. are all of those unlawful? every one? do you have to leave it up to the -- no matter what the subject, no matter what the -- or are you going to draw a line somewhere? is there a line that you could draw that would take your case on the right side from your point of view, but would say we're not giving power to every administrator in the city to decide on his own whether to use racial preferences without a possibility of a higher-up veto -- >> i think -- >> which i don't think you want to say, but maybe you do. >> no.

i think these are very fact- based determinations. and so, somebody could make a decision that they wanted to use what you're calling racial preferences. and that could mean a range of things, and that could be subject to a veto higher up. yeah, i agree with you. >> so what's the line? is there any line that you can say, look here. we were trying to be very helpful, and all of a sudden they put this thing on the ballot, you can't even get it through. ok? that's your basic point. but -- but if you think of -- you have to write something, and that something has tremendous effect all over the place. so what kind of line is there, in your opinion? >> i think hunter-seattle provides the line. i think it says that if you have a law that has a racial focus, and that law, part of proving that it has a racial focus, is that it takes a benefit that inures to minorities and it removes that benefit and it restructures the political process and places a special burden on minorities to re-

ascertain that right, yeah, i think that's a proper rule. because it's -- it's -- >> can i -- can i come back to the question that the chief justice and justice kennedy were asking before? essentially, it's their question. let's say that the -- the decision about admissions criteria across the board is basically delegated to the faculty. all right? and the faculty adopts some sort of affirmative action plan. and now that is overruled in favor of a colorblind approach at various levels going up the ladder. so maybe it's overruled by the dean of -- by a dean, or maybe it's overruled by the president of the university. maybe it's overruled by the regents. maybe, if state laws allowed, it's -- it's overruled by an executive department of the state. maybe it's overruled by the legislature through ordinary legislation. maybe it's overruled through a constitutional amendment. at what point does the political

restructuring doctrine kick in? >> i think in this case, the difference between what other groups can do in order to get preferential treatment for their sons and daughters and what racial minorities are subject to, the level of distinction places such a high burden on minorities. >> well, that really -- that really isn't responsive to my question. let's say exactly what was done here is done at all of these levels. at what point does the doctrine kick in? when it goes from the faculty to the dean? from the dean to the president, et cetera, et cetera? where does this apply? >> i think it depends on where it is that minorities face a heavier and special burden. >> it can't be that, because the normal political process imposes burdens on different groups. i thought the line was a very simple one, which is if the normal academic decision-making

is in the dean, the faculty, at whatever level, as long as the normal right to control is being exercised, then that person could change the decision. so if they delegate most admissions decisions, as i understand from the record, to the faculty, but they still regularly, besides race, veto some of those decisions, and race is now one of them, then the board of regents can do that normally. so could the president, if that's the way it's normally done. it's when the process is -- political process has changed specifically and only for race, as a constitutional amendment here was intended to do, that the political doctrine is violated. have i restated? >> you have, you restated it very well, and i agree with you in principle. >> but i still don't understand your answer to justice alito's question.

suppose the dean has authority in the bylaws of the university to reverse what the faculty does, but you have a dean who just does not like affirmative action. he is dead against it. and he makes the decision to reverse the faculty. do you have a remedy? >> i don't think it -- i don't think hunter-seattle applies. >> all right. then you have justice alito's question. then it's the president of the university, and then it's the legislature. >> i think you need two things . i think you need the decisionmaking -- the decisionmaking body. if the university of michigan regents decided tomorrow to eliminate affirmative action programs and there was no prop 2, they have the legal right to do that. they are the decision-making body. and minorities still could go and lobby the regents, still could go and talk about the questions of racial equality difference -- >> but would that be true --i'm sorry. would that be true if they had

never gotten involved in admissions criteria before? they have the authority, but they left that to the university officials. >> i think if they have the plenary authority to do that, yeah, i think that, again, if they wanted to eliminate affirmative action programs and they had that plenary authority and it was guaranteed by the michigan state constitution and it had existed for 150 years, and they chose to enter this area, i think -- >> i don't see how that is consistent with justice sotomayor's answer to my question. don't the people of michigan have -- don't the people of michigan have plenary authority? >> in this case, the particular it's -- they are applying that plenary authority in --or in a way that is racially focused,

and creates a political process that is disadvantageous to minorities. >> i'm not saying instead of political process. don't let me put words in your mouth. think what you think here. you say where the authority is divided in a certain way, and that is true under the constitution of the state. so the state government lacks the power. and then you have to take the power from the people and change the constitution, and when you do that in respect to a benefit, then, in respect to benefits, washington -- you know, seattle and hunter kick in. see, where are not dealing with past discrimination. >> this -- what we're talking about in terms of affirmative action are constitutionally permissible programs that were shown to this court to be the only way to achieve racial diversity and integration at the university of michigan. and whether you -- whether you

explain that by looking at the reality of the inequality in education for black and white michigan or whatever it is that you come up with that requires that, the university has shown that this is the only way to achieve diversity in which racial diversity is a part of the -- is a part of the quotient. and so to take away that right from the university and from the regents -- and i just want to go back to one of the questions that was answered. if you look at the law schools, the medical schools, the professional schools now in the state of michigan, there's been a precipitous drop in underrepresented minority enrollment in those schools. we are going back to the resegregation of those schools because of the elimination of affirmative action. >> to what extent -- to what extent does your argument depend

i thought both hunter and seattle speak in these terms -- that the policies that are more difficult to enact are beneficial for the minority group. >> the --- say that -- i'm sorry. can you repeat -- >> to what extent does your argument depend upon the assumption that the programs that you say are now more difficult to enact are beneficial to the minority group? >> i think it's an important component part, because i think it's in the benefit to the minority group that it's especially important -- >> well, why do you -- >> that the political process be on a level field. >> right. what if the question of whether it's a benefit to the minority group is more open to debate, whether it's through the mismatch theory that taylor and sander i guess have adopted, or other theories? do we have to assume in your favor that these definitely are beneficial to particular minority groups? >> certainly the minority voters of michigan believe them to be, because 90 percent of black

voters in michigan voted against prop 2. and i think that that's a clear indication of the popularity of these programs and the perceived benefit of these programs. >> there may be a difference between popularity and benefit. in other words, you want us to assume that the programs are beneficial to a minority group? >> yes. and they are beneficial to minority groups. they may -- they may serve to provide benefits for the population beyond minority groups, but they are a benefit if they -- >> your opponent says otherwise. he says that minority students have taken tougher courses, they have been better qualified to be admitted, and all sorts of other benefits. so it's certainly a debatable question. >> it's a debatable question in another forum in a different case, and in fact i think that case was the grutter case. this case isn't about -- isn't

just about whether or not affirmative action benefits minorities. it's also the restructuring of the political process and the special burden that's placed on minorities. it's not -- if you want to go back to debating the -- whether affirmative action -- >> you're changing your answer, then. your answer to the chief was it does depend and now you are saying it doesn't depend on whether it benefits minorities at all, it's just whether it places a -- a greater burden on minorities to change it. which is it? >> no, i -- >> one or the other? >> i think it's a two-part test. i think the first, the first thing that you look at is, is there a racial focus to the law, and is the benefit that's been taken away something that inures to minorities. and i think the second part of the test, and that's why i think seattle/hunter is such a narrow doctrine, is whether there also

has been a restructuring of the political process and a special burden placed on minorities. it requires both. >> thank you, counsel. mr. bursch, you have 4 minutes remaining. >> thank you, mr. chief justice. i'm going to start with a sentence from crawford, decided the same day as seattle, where this court defined what a racial classification is -- a racial classification either says or implies that persons are to be treated differently on account of race." it doesn't say anything about laws with or without a racial focus. and we think that is the test that ultimately should come out of the decision in this case. now, my friends on the other side disagree with that, because if that's the test section 26 is constitutional. and so they draw this false dichotomy between laws that involve race and laws that don't

involve race. we will put them in two separate chambers of the legislature and charge a fee if you want to talk about -- about race. and we know that can't be right, because of, chief justice roberts, your observation that the whole point of equal protection is to take race off the table when everyone is being treated the same. that's why they can't -- >> you quoted -- you quoted from crawford. >> yes. >> and there is an opposing quote in seattle itself on page, what is it, 486? >> yes. >> "when the state's allocation of power places unusual burdens on the ability of racial groups to enact legislation designed to overcome the special condition of prejudice, the governmental action seriously curtails the operation of those political

processes ordinarily to be relied on to protect minorities." and it quotes carolene products. so -- and then the following sentence is -- "in the most direct sense, this implicates the judiciary's special role, not of treating the individuals as individuals, but the judiciary's special role in safeguarding the interests of those groups that are relegated to a position of political powerlessness." so the rationale of seattle is that notion that we can't put hurdles in the way of a disadvantaged minority. >> justice ginsburg, there is two problems with that. first that's where the respondent's theory most closely knocks up against grutter, because you are right -- under

seattle and hunter you've got to have a policy designed for the purpose of primarily benefitting the minority. but if that's the policy, it violates grutter, which is supposed to benefit everyone. but the bigger problem is if you treat a -- >> diversity does, but when you take away a tool for diversity that's what seattle is saying is wrong. >> right, but the bigger problem -- >> you can't take the tool away simply because it may include race as a factor, simply because you are changing the playing field. >> but justice sotomayor, the biggest problem with respondents' test, with applying the literal language of seattle, is that as i said, the federal fair housing act, the equal credit act, a state equal protection law that mentions -- all of these things fall in the category of laws dealing with race. some are discriminatory. >> seattle and this case both involve constitutional -- seattle and this case both involve constitutional amendments. so why can't the law -- the law be drawn -- the line be drawn

there? if you change the allocation of power in one of these less substantial ways, that's one thing, but when you require a constitutional amendment that's really a big deal. >> because that would still invalidate the michigan equal protection clause which has a racial focus that says you cannot discriminate based on race or sex, and yet no one would argue it should be subject to strict scrutiny. >> that's the benefit to a minority group. but what i'm thinking is go read the cases. you yourself seem to say these cases seem to apply alike to the benefits or to the discrimination against it. i mean, there is lots of language in seattle. >> right. >> you come -- now, suppose you take that and say, all right, it was meant in context; but the context includes constitutional amendments because with the constitutional amendment you are restructuring. now you would lose on that theory, but there would be a limitation on the extent to which the people have the right to move powers around. >> justice breyer, the limitation has to be not only that, but also that you are repealing an antidiscrimination law, not an equal treatment law. or again, otherwise the state

equal protection clause has to fall. so to the extent that i am right, that is a way that you can narrow hunter and seattle, and section 26 has to survive. if i am wrong about that, then respectfully seattle and hunter should be overruled. either way, it does not violate equal protection to require equal treatment. thank you. >> thank you, counsel, counsel. the case is submitted. [captions copyright national cable satellite corp. 2013] [captioning performed by national captioning institute] >> van spaceman, your calls all of by the "washington journal." later, a discussion about press freedom during the obama administration. in a moment, your calls on "washington journal" followed by a look at politics and gridlock with to "boston globe" journalist, michael kranish and matt viser, followed by discussion on fitch ratings with

chief credit rating agent john olert. later, our guesses robin wright of the u.s. institute of peace. "washington journal" is next. ♪ host: good morning, a live view of the white house this morning as the story moves from the government shutdown to the implementation of the affordable care act. "the washington post," reporting that the president will be addressing the problems with the health care website. a discussion will come tomorrow at a white house event. on capitol hill expect another hearing this fall looking at the hall and -- looking at the law and its rollout. this morning, sunday, october 20th, we want you to join in on