>> representative, your question. >> the abercrombie administration wanted to balance the budget on the back of others and propose a tax retiree pensions. when it mattered, you did nothing to stop governor can't you just stand up to your mentor and disagree with him publicly? how can we count on you to be an independent vote in the senate if you can't even do that? >> well, this is an area where the governor and i disagreed. i opposed a pension tax. i continue to oppose a pension tax, but, colleen, this is another example of your desire to talk about everything under the sun except your record in the united states house and my record in the united states senate. look, you had the opportunity to serve for 3 thave years for the first congressional district. you have introduced 28 bills, one of them has passed.

it is the renaming of a post office. you don't want to talk about your record in the congress when it comes to protecting the elderly because you were one of the very few democrats to vote to nund mine social security by raising the retirement age and reducing the cost of living adjustment. this is an example of the way, colleen, you have been operating which is to try to talk about every single thing that you can come up with except your record in the congress and except my record in the senate. >> brian, i'll talk to you any day about my record especially in the areas where it comes to preserving jobs and creating jobs. let's be also very clear about your problem. you keep saying i opposed this governor. he never did. brian, i read every single testimony that was given and you never opposed the governor. you actually stood with him. i can't bring my picture in here, but people remember my picture and you said we have to do hard things. the bottom line is, you are always willing to balance the

budget on the backs of our kapuna. >> senator, you have 30 more seconds, sir. >> that's just ridiculous. this is just another example of colleen sort of throwing the kitchen sink at me and i have become used to it. i'm sure we'll be ok when this is all over, but look, i have been a strong advocate for our seniors. i have been a strong advocate for reforming the medicare part d program so that we get more affordable prescription medication. i have been a strong advocate for strengthening and enhancing social security and, colleen is sort of relentless in making these issues totally confusing. they're not that confusing. she hasn't been there in the congress when it comes to our seniors. >> and we are running short on time. i wanted one more yes or no answer. senator, do you support president obama's policy on immigration and protecting our borders? >> i do, yes. >> representative? >> i do, but i have to say this, i do not support that portion of it that's going to be used to deport, which is one

of the uses of those funds. >> we appreciate both of your responses tonight to help educate voters as they go to the polls. before we close, candidates have 90 seconds for closing remarks. we determined the order by coin pace. you are up first and your time begins now. >> from the first day in office in 1999, i studied and read the bills because i realized that details matter. my colleagues honored me as the first woman president of the hawaii state senate and the first woman to head either chamber in the legislature. the greatest legislature in this world is the united states senate and if anyone knows what it takes to be successful in , our dy, it is senators senators. between them, 71 years of service. i am very honored to have their support and trust and confidence in doing this job. if i'm fortunate to be elected,

i will take their values, which are your values of humility, hard work and aloha with me. you know, i have been asked throughout this campaign as to what is my contribution. i used to say, oh, i was chair of this, i did. you know what, when i really think about it, my contribution to you is to your daughters, to your grand daurds, your nieces, and your sisters and that is that when they look at my journey to washington, when they see the growth in making that journey, they will say they can do it. this election will come down to one word and that is trust. i believe i am the person who you can trust to carry forth the hawaii that you want. thank you very much for listening to us this evening and i humbly ask for your vote. senator. >> thank you, thank you to colleen, let me tell you why i love doing the work that i do.

you know, we had a lot of good debates, five of them. we had lots of good conversation about politics and policy, but it's really not about the two of us. my favorite moment over the last three weeks was when i found out for sure that those 220 jobs across our neighbor islands were going to be saved. three months ago, we found out that they were going to be moved to minimum wage and i intervened and we had a lot of difficulty. we had to work with our colleagues. we had to work with the union. we had to work with the united airlines folks. eventually we were able to do this. 220 people are going to be able to support their families on the neighbor islands with good quality jobs and that's the kind of thing that i am so passionate about. that's the kind of thing that i know my wife is passionate about it. that's why we make the sacrifices that we do to run for office, to serve in office. i love serving you.

i love fighting for you, but in order to continue to do that, i need your help. the election is coming up on august 9, i would be honored by your support. i humbly ask for your vote. >> and thank you to both candidates, that brings us to the end of our senate showdown. .ahala to our panelists don't forget, the primary election is 23 days away, early walk-in voting will begin july 28 at locations across the state. join hawaii news now for live team coverage of the election night returns as they come in. we have heard a lot from our candidates tonight. of course, you have the final say. on behalf of hawaii news now, thanks for watching, aloha and good night. >> and again, the hawaii democratic primary is tomorrow. in addition to the senate race, voters in the aloha state will also election a governor, governor neil abercrombie is

running against his opponent for the democratic nomination. recent polls have him trailing in that race. there are conflicting nonpartisan polls in the race with one poll from last friday showed shatter schatz with an eight-point lead, that is 49% to 41%. another poll out on monday found congresswoman hanabusa leading by eight points. later this afternoon just after 4:00, one of the leaders of the p.a.c., here ry is a quick look. >> one of the things that is really unique about this rganization is that, you know, we're not so, it would be presumptuous to think that ready for hillary to dictate what hillary clinton's message is going to be. this is not a campaign. it's focused on building grassroots army and building grassroots infrastructure. for every time that hillary

goes out and gives a speech about recent things that have happened and voter supression, we're really echoing that and making sure that our email list knows the key points that she has hit on and giving people opportunities to really join in the efforts that she is promoting and then also really just using her as a force of personality and so a lot of the imagery that you see on the facebook page and on the email list and other social network channels are things that we have done a lot of testing on and seen that people really respond to because she is an inspiring figure. >> you can see all of that discussion of the ready for hillary pac beginning at 4:05 eastern today on c-span. a three judge panel for the sixth circuit court of appeals in cincinnati heard oral argument on wednesday on the

constitutionality of michigan same-sex marriage ban. this is one of four cases heard. the others were from kentucky, ohio, and tennessee. this particular case involved the same-sex couple who initially challenged michigan's ban against allowing same-sex couples to adopt children. they amended their suit to challenge the same-sex marriage ban. a lower court struck down the ban as a violation of the constitution's equal protection clause. >> good afternoon, i'm here on behalf of the people of the state of machine. play it please the court, justice kennedy explained just a few months ago, it is a fundamental premise of our democratic system that the people can be trusted to decide even divisive issues on decent irrational grounds. that's what this case is about. it's about to who gets to decide what the definition of marriage is and what that definition must be and it's about who gets to decide on two different levels, the judicial

hierarchy has felt whether a district court can disregard a directly on point holding by the united states supreme court, namely baker versus nelson and the bigger picture, it's whether federal rights, if there is a creation of a new federal constitutional right if that should be done under the amendment process or by the courts under a doctrine. there is common ground in this state that the u.s. constitution does not directly address same-sex marriage which means to turn to the question substantive due process. the right being asserted is objectively deeply rooted in this nation's history and tradition and puts it in the concept of the words liberty, such that you can conceive of liberty and just -- justice about it. same-sex marriage doesn't have the deep root. >> what do you do about the fact that one could have said the same thing about lawrence? >> well, with respect to lawrence, the lawrence court

didn't directly address that analysis. this court has repeatedly applied the analysis and recognizes the continuing way that you're supposed to analyze due process both in the u.s. citizen association case and lawrence, this court has continued to apply glovesburg has recognized as that as the relevant standard. lawrence doesn't override or reverse all of the cases before it simply by not mentioning it. >> so this court is still bound about it and by this court's precedence applying glovesburg post-lawrence? >> what about baker, you mentioned that early on. not a very long opinion, i think you would acknowledge, a lot has happened since then, i think you also knowledge that, so how do we deal with it? >> well, this court is bound by the length of it doesn't matter because the question is a

question of hierarchy, and i would say that the supreme court has repeatedly said that summary decisions that it makes are binding on the lower courts. it merits determinations and this court has reiterated that. a case specifically said that summary dispositions are still binding unless reversed by the united states supreme court. so i think that -- >> it's a little more give and take in it than that. he doctrinal developments, doctrine that has grown out of other supreme court cases, we're clearly dealing with doctrinal developments in this area of the law, are we not? >> well, there are two answers to that. first of all, the doctrinal developments language in hicks is that hicks also said that courts are supposed to follow the supreme court's decisions until it overrules that and

subsequent to that, in rodriguez and the cases this court has also made this point, it's a decision that the supreme court wrestles on cases and overruled. so if the supreme courts override it, but i disagree on the doctrinal development point two. roemer doesn't do anything to undermine the fundamental rights aspect of baker versus nelson. both questions were presented in baker versus nelson whether there was a due process right and also -- >> you don't think lawrence overruling a case that came out just a few years before that indicates a doctrinal development? >> i think that shows a doctrinal development in the area of right to privacy. but i don't know that that necessarily shows doctrinal development in the fundamental right to marry which is public recognition to something, not a right to privacy. lawrence has decided on a different substantive due process crown and doesn't have

anything to say about the fundamental right to marry. >> what about the case that just, that the policy and the laws against ma psychological nation were not deeply rooted in our american society and yet that went by the by? >> the case is primarily about the fact that there was racial discrimination, violation of the protection clause which the supreme court recognized that the primary court component of the 14th amendment is to end racial discrimination. the fact is that racial discrimination -- >> was it not the law across huge swaths of southern states at the time, i mean that was a vote by the people of many ates against the pocket of interracial marriage and the language says the right to

choose whom to marry is a fundamental right. >> to the extent that there is an attempt to analogies the question of same-sex marriage, the supreme court rejected that express analogy in the baker case. so it just doesn't matter what the supreme court has previously done -- >> what but with respect to the loving analogy, the supreme court, if the supreme court wanted to say that the freedom to choose who to marry wasn't limited to someone of the opposite sex and they didn't do that, that

question was directly presented to that. so that shows there was a different between race which does not go to the heart of what marriage is. >> you would have to concede that there were in terms of what the electorate wanted, the loving decision went against what the electorate wanted in much of this when it was announced? >> i think it did not. when you talk about the electorate wanted, the electorate passed the 14th amendment to end racial discrimination. the electorate that wanted to end -- >> you might be understood in knowing that as recently as 1978 the tennessee constitution provided, "the intermarriage of white persons with negros, mulattos or persons of mixed blood descended by a negro to the third generation exclusive or living together as man or wife in this state is prohibited. the legislature shall support this section by propose legislation. in march of 1978, the tennessee electorate was asked to appeal

that provision in the constitution and they did so but they did so by a margin of only 8,000 votes out of almost half a million. >> i think the points show that the people did choose to try to end racial discrimination with the 14th amendment and did also later choose to end racial discrimination. that just showed that the people can make decent and rational decisions. it doesn't mean that history and tradition of this court with respect to an issue here which is same-sex marriage, having to look at windsor, it's very instructive, the historical analysis. section 3 of windsor talks about the history and tradition of marriage and certainly talks about the history and tradition of same-sex marriage and with respect to same-sex marriage, it recognizes that it was only until recent years when that was even possible. >> that's true, that's true. if we take this case to be about the right to marry and not the right to marry a person

of the same-sex, isn't what is going to happen around the country pretty clear and what is happening pretty clear? >> if what you're saying is people are passing laws to change the law? >> that's not what i'm saying. what is the issue, the issue to right to marry, dealing with the right to marry or dealing with something like, oh, what were those cases, the right of inmates to marry, the right of deadbeat dads to marry? i think it was judas kay that said fundamental rights are fundamental rights, simple as that. >> for example, if you're looking at whether there is deep historical roots within the definition of marriage that only people not behind on their child support payments can marry is different than only people from the opposite sex can marry. hose due process, they had

limitations that were not deeply rooted throughout the sthurs. the supreme court is talking about history and tradition of the windsor opinion. the marriage between a man and a woman is centuries and recognized as fundamental. the supreme court was talking about the fact that the marriage is defined as being between a man and a woman is fundamental to the very definition of the term. that was true to the definition of the term and function throughout the history of civilization. >> what do we do about the reality that the marriage is always about, it changes with social morets and maybe originally marriage was encouraging pro creation, channeling procreative possibilities. modern morets are love and commitment. it seems harder to justify on basis grounds. everything you're talking about is not being a fundamental right, that doesn't answer the question that really was the holding in all four of these

cases, that it doesn't even survive rational basis for view. what do you do about the difficulty of if you think about marriage just through that lens, love, affection, commitment, it does start to get a little difficult to see the difference between the one group eligible and the other group not. >> i agree, when you focus on fundamental rights, history is the focus. the protection, a rational basis and so the question is, i guess, the preliminary starting question for the rational basis inquiry, why is the state interested in marriage in the first place? why is the state interested in emotional connections between people? we discussed this in our brief. it doesn't have interest in regulating friendships, it doesn't regulate how many people can be in a friendship or how long a friendship has to exist. the reason it changes and why the state has interest in marriage, marriage leads to children and in society and how

is society going to make sure that they're cared for. so it's rational, so the states have an interest in promoting interest so it will be more likely that a child will have both a mother and a father and have the benefits of having both a mother and father. remember, in the trial below, the experts on the plaintiff's side conceded there are differences between mothering and fathering, there are different benefits for each one. >> what is the rational basis for excluding everybody else? i mean, it doesn't cut down on the pro creation of children, interfere with the pro creation of children just because you got two people of the same-sex marrying and in some of those marriages, one of them, one of the partners is able to procreate. >> first i have to point out that the rational basis with a different view, that is flipping the question. the robison case lays this out very clearly by the united

states supreme court where it points out that the question for rational basis for view is whether the state interest that is being put forward, if it's being vabsed by including a first group and by including a second group that does not advance that interest is not irrational, it does not extend benefits. that case again was about veterans benefits. the question the state interest asserted was having people fight in the armed services and the benefits were extended to them, the benefits encouraged people to join the military. the question was do conscientious objectivors are they entitled to these benefits, they would not advance the state's interest in making it more like being able to fight in the nation's services. >> you would say that what we're trying to do in the confining marriage to opposite sex partners is to encourage pro creation? >> i think that is one of the state's interests is making sure that pro creation for one

occurs in long-term committed relationships with opposite sex couples where pro creations. >> isn't that a little hypocritical then to have, allow people to marry who can't procreate but prevent same-sex partners from marrying? honor, all, your state for a same-sex couple applying their marriage license, are they going to procreate, the definition of marriage is always going to recognize that opposite sex couples have the right to marry. that would be a limitation on the right to marry. you wouldn't get to that question. >> you would acknowledge that there are benefits, important benefits to the state beyond pro creation, the benefits and responsibilities attendant to the ge seem to bear on question we're suggesting here is whether or not those matter

to a state that says as virginia did, we have no interest in rights in seeing adult love. there are these benefits and responsibilities that would be , ortant to the state, taxes somewhat consistency among the members of the -- married members, marriages throughout the state all would have the same responsibilities, those sort of things? >> i think there would be other benefits from people -- >> pro creation. >> staying together. there may be multiple state interests, but the question here is whether it's a rational state interest to make it more likely that every child have both a mother and a father or whether it's at least a rational state interest to try to recognize that as a biological reality opposite sex couples can have unplanned pregnancies where as same-sex couples can't.

so extending marriage to opposite sex couples addresses that concern, to same-sex couples doesn't. it's a rational basis which is all that is necessary. there are other benefits for marriage, but the fact that that doesn't undermine its rational for the state to be promoting these marriages? >> are there benefits? >> acknowledging recent cases have not applied pure rational basis review? we know that windsor, for example, placed the focus on difference in rational basis with you? >> well, windsor, roemer and then windsor. roemer talks about conventional inquiry and talked about whether there is a desire to harm so windsor does the same thing, roemer requiring a desire to harm in order to set aside the rational basis. if there were a desire to harm, you may not be able to tell that if there was no rational basis.

there is a rational basis. there is no reason to fall back on the desire to harm. the presumption is what i started out with. the voters are decent and rational. if there is a plausible -- i mean that's what the rational basis test is. there is a conceivable basis, then that's reason to uphold the law and this is a democracy promoting rule. it allows the people to make these decisions. remember, this is something that the people can decide to change tomorrow by amending the federal constitution. it's not that the court is the only recourse for creating a new right. in fact, the court shouldn't be creating new rights. the third rational basis i haven't brought up yet is the fact that there is uncertainty in this area. it's simply such a new thing, it's hard to tell. police officers experts conceded that trying to study children raised in a same-sex household is a needle in a haystack population. they can say there hasn't -- an expert says there hasn't been a single comprehensive study of children that were actually

raised in same-sex marriage. so a rational person might think even somebody who would vote in the future for same-sex markings a rational person might think it's too early to tell. it's rational to wait and see. so there is a number of different rational bases. >> you were starting with fundamental rights and talking about rational basis review. the if you get to intermediate scrutiny through one path or the other, would you concede the state has a problem? >> no, your honor, it would depend on which framework it would be scrutiny. intermediate yacht scrutiny setting aside the fact that the court has three precedents, sexual orient indication, even if those weren't there, under immediate scrutiny, biological differences between men and women can make a difference. in a case which is about the difference between mothers and fathers who had children who were born outside the united

states, the united states supreme court upheld they treat men and women difficulty and required men to prove to a higher degree they were the father than a woman when they brought the child back in the u.s. it's possible to survive under intermediate yacht scrutiny. under the equal protection clause, the law stayed neutral and the law has no intent to harm. the district court in michigan's case will be recognized it wasn't possible to say that there was an intent or an an mouse on the part of michigan voters. so that means the only thing that is left is the impact and under washington versus davis -- >> how did they stay neutral? >> neutral -- >> marriage is including one group but not another? >> by defining marriage to be between a man and a woman -- >> basically neutral as genderwise, i understand that. i agree with that. but i understand why it's neutral as between people of one sexual orientation and

another. >> i think the answer would be that it doesn't prohibit them from marrying either. so neutral, there was no evidence that this was done to exclude them. the evidence that it was simply continuing the definition throughout michigan's history. >> so the only reason, that's the answer. >> can i ask you, you mentioned the sixth circuit. i assume you're talking about davis? >> as a friend of davis, yes, your honor. >> you know the problem with the quality foundation as i read it, it depended on, it relied upon the supreme court's decision which was reversed in lawrence. so i wonder -- >> your honor, the equality foundation opinion mentions

bowers only when talking about prior history and it's based on roemer. it was remanded in light of roemer and now it's under roemer. so it doesn't rely on bours. it doesn't talk about bours and again, this court, even after lawrence has continued to apply the same -- >> i have to tell you, we are sometimes perfectly capable of blindly applying cases. i'm not sure i would be willing to say that we did in davis, but that has happened. >> if you were to lose under either one possibility, a possibility of same-sex marriage and the other possibility is the review which makes life difficult for justifying the law, would a practical implementation problems, you know, with brown, you could say the only implementation problem was resistance, but it's a pretty

easy rule to implement, right? i guess what i'm interested in from the state's perspective is this already controversy, there may be resistance, but why is it difficult as a matter of implementation to implement this new rule? >> so, in other words the outcome were that same-sex marriage is constitutionally protected, would it be harder for the states? >> yeah, what problems result? >> i guess i think if you're talking about what possible harms might come from changing -- >> limitation problems, is it difficult to adjust state laws on marriage, divorce, anything else, or is it really pretty simple, you just now include this new group within -- >> it would have widespread impacts, i'm not quite sure how exactly all those would play out. >> what would they be? that's the question. what would they be? >> as far as changing how

michigan's laws about marriage? and the big picture, one of the things that could happen if it were changed, this is something that there would be no institution in michigan would stay, it's important to have both a mother and father. in terms of societal impact there might be harms which is to say there would be say there is nothing important for mothers to be there and fathers to be there. >> do you honestly thinks that's what happened in the states where same-sex marriage is now valid? >> i think it's too early to tell, your honor. it's only been 10 years since the first state passed it. >> we're beyond 25% of the jurisdictions in the country and probably more than that in terms of, maybe more than that in terms of population as a whole. and it doesn't look like the sky has fallen in. >> i think the point is that it's too early to tell when

you're changing such a fundamental bedrock of society in just 10 years. that's not even a single generation of children. so i don't know how it could be possible to assess the outcome of children. >> i thought there was a lot of evidence offered in the second trial in michigan that indicated, in fact, that the outcome on children was reasonably benign given what they know at this point. and i know you're going to say, t's too early to tell. >> i think that's a valid point, your honor. >> but then the people who tried to come in on your side of this trial and present all these terrible impacts that they said this would have, i mean there was even the texas professor where he had a disclaimer on the university of texas website saying don't believe anything this man says. >> your honor, the fact that one particular social scientist, i think the picture,

the big picture is this is something rational people could agree. it's a point that justice alito made in his assent in windsor that rational people could recognize that it's too early for social scientists or fill loss fers or historians to be able to tell. >> to your point, mr. lindstrom, that the votes of citizens of michigan is that, i should think? >> i definitely think that weighs in consideration very heavily to say that, for example, this is under rational basis review to say that michigan voters didn't have among them, 2.7 million of them, a single rational basis and it's not possible to have a person of good will to disagree. >> the panel are people from ohio. we might be able to accept that argument. >> well, fair enough. so i think the numbers in ohio are also quite, maybe more sensitive. >> my red light is on?

>> the dates of the lifetime the people in michigan voted was something like 10 years ago. >> it was 2004, that's correct, your honor, people can change their mind in the future. >> your full rebuttal time, thank you. ms. stanyar. >> may it please the court, carol stanyar. for 50 years the supreme court has recognized that the freedom of personal choice in matters of marriage and family life are liberties protected by due process. april deboer and jane rouse have a constitutional right to share a life, to marry, to form a family, to raise their children. we show in this case that no matter what standard of

scrutiny the court uses, no matter what doctrine the court applies, the state can't prevail here. the michigan marriage amendment is unconstitutional. a startling disagreement between the parties as the court has already observed is the articulation of the right itself. is it the right to marry or is the right to what the state is calling same-sex marriage? >> what about -- i mean, i realize before windsor, the first and second circuits said baker is binding. post-windsor, there is a majority recognizing that, but i have to say, i really find that a very serious issue. the thing that is going on is you oddly enough treat the summary as binding precedent no less than a fully read opinion. everyone understands that is true. there is this language that the judge pointed out, doctrinal development. that's mainly from a 1975 case,

hicks. it's not clear what hicks means because it then later says, you know, follow this until we tell you otherwise. , the n american express court is pretty clear about saying even when you see one line of cases crumbling, you the lower courts aren't allowed to infer anities torely overrule this over line of cases. i guess it really is a matter of high arcy. aren't we stuck with baker? >> i don't believe so. this is one line from the order. it binds the court unless there are doctrinal developments that are subsequent. roemer, windsor, and lawrence constitute that doctrinal development. >> you say doctrinal development. is it fair to paraphrase that to me reasoning that is inconsistent with other lines

of precedent? isn't that what you mean by doctrinal development? >> there is evolution of these concepts, evolution of due process concepts, evolution of equal protection in lawrence and in, i think, the court -- >> that is grown increasingly inconsistent with baker, that's your point, right? >> it's totally inconsistent with baker. >> ok. isn't that agustini? isn't that what is going on? >> it is distinguishable. it was a full opinion that was -- that had written opinion, it had oral argument and a conclusion and the distinction between the summary and that type of situation is the fact that in a summary affirming order, you don't know what the rationale for the court is. it's an 11-word order. you don't know what the rationale is. you don't know what the court based its ruling on. that is what distinguishable

about these type of rulings. >> i think that's why summaries aren't binding on the supreme court. they're very casual about ignoring them, but i didn't think that rule applied to lower courts. >> the second circuit in league of women voters of nassau county explained that lower courts can be informed directly by an outright reversal of an earlier decision or they can be informed indirectly by doctrinal developments. so they help or what we would say is that here are the doctrinal developments are the way that this court is informed, and, therefore, this court can make the call, this court can make the call despite baker and every court in the country has ruled this way on baker. >> that wasn't true on the first and second circuit for windsor. >> before windsor, right? >> windsor is doctrinal development, the most doctrinal development that we have, it's a recognition of the same-sex marriage case.

it's the degree that i would argue doctrinal development case. >> lawrence and roemer were doctrinal development. i think you rely on those cases. >> we do. >> that didn't fall through their view to look at this? >> it didn't alter the sixth circuit -- >> in the second circuit's view before windsor? one of those cases was windsor itself? >> i understand that, the court in perry certainly -- let me put it this way, the court, the supreme court had that issue before it. there was a discussion on the record with i believe justice jeansberg talking about -- beginsberg talking about don doctrinal development and the court didn't think anything on that. the court doesn't think much about that. it didn't even mention baker. it didn't even talk about it. and the court allowed california's ban to be struck down. >> it would have been pretty

strange for windsor to say anything about baker given that the companion case to windsor is hollingsworth and they decided there was a jurisdictional impediment for getting to the issue presented in today's case. >> i understand. i understand what the court is saying. i think in this case, this court can reach it because, you know, there has been doctrinal development. >> we are not asking to redefine the marital relationship. we are only asking for an end that prevents same-sex couples from the right to marry. due process focuses on the attributes of the right itself, not on the fact that the person -- >> when you're talking about getting that right, it requires statewide, that's what your clients want. >> they want state license. >> license, fair relationship. >> that's correct and the right to marry, yes. >> well, the import there is something different than i thought you were talking about.

you want them to recognize it and to license it by the -- the state to license it. >> we do. >> ok. >> the central attribute of the marriage is the freedom to marry the person of your own choice. the state citeses glovesburg that the court must make a careful of the right asserted. loving versus virginia, turner and the list -- >> i mean, i just, that is 1967 decision so in 1968, say a gay caucasian man and a gay african-american man go to virginia to seek a license to marry. do you really think loving controls that case in 1968? >> well, i think the court by citing loving in windsor thinks that there is not much difference between marriage by a same-sex couple and marriage by an interracial couple. they didn't decide the case but they cited it.

the trend is certainly in that direction. i think the court -- >> it's different from saying what loving stands for. isn't the answer to my question about what happened in 1968 pretty obvious because we have baker in 1973. >> i think that lawrence, excuse me, that justice kennedy tells us something about how the court may be viewing these cases. i think what he is saying and i think you see it in lawrence and you see it in windsor. back urt is saying that decades ago, certain practices were accepted. now we understand more about these things and we now understand that these are now going to be framed as discriminatory. we didn't know anything about same-sex couples back at the at the time of loving. these were hiding because their conduct was criminalized. i think to say that this is,

with the argument hold water back in 1967, it was a different time. >> what about, i know that there is many significant benefits, some of them monetary and extended to same-sex couples if you win here and i think that's significant, but i have to believe based on the briefs that the most important thing is respecting dignity and having the state recognize these marriages the same way heterosexual marriages are recognized. if respect and dignity are critical or the key elements here, maybe there is something i'm missing. i would have thought the best way to get respect and dignity is through the mistake process, forcing one's neighbors, co-employees, friends to recognize that these marriages or the status deserves the same respect as the status in a heterosexual couple. so it's just funny to me why

the democracy process which seems to be going pretty well. nothing happens as quickly as we might like, i'm just curious how you react to that point. >> the michigan marriage amendment gutted the democratic process in michigan. voters can no longer appeal to their legislators. the usual deference to the process evaporates, there is lenty of reason to infer antipathy here. >> michigan voters have put, another initiative were put in front of them, it may be a different vote and may well be a different outcome today. >> the practicality, the michigan voters, to get this before them, you would have to come up, the signatures of 10% of the total number of voters that were in the last general election for, it's very cost

prohibitive for a disfavored minority to be doing that. >> change of hearts and minds which i believe is one of the key goals, isn't that worth the expense? isn't it more likely to change hearts and mind through the democratic process than you are by five justices of the u.s. supreme court? >> fundamental constitutional rights may not be submitted to popular vote. they depend on the outcome of no election. >> assuming you win, my question is assuming you can win on this, i'm asking you a question, why do you want this route? it's not 100% obvious to me why it's the better route, it may be the better route for your clients and as a lawyer, you have to keep the focus on that, but it's not 100% obvious to me it's the better route for the gay rights community, that's not obvious to me. >> i'm not at all optimistic that we could get that in michigan, secondly, the government made that same argument. they said, just wait for the

passage of the e.r.a., that would be better. that was 1973. we would still be waiting now. it brings injury here, marriage provides unparalleled social, legal, and personal meaning, commitment, mutual reciprocal responsibility, dignity. it is security, it is a status, it is stability. it goes well beyond the deprivation of the right to marry. michigan's loss are pervasively discriminatory to same-sex couples. they are destabilizing to these families, something that i think all parties agree during this trial. april deboer is a legal stranger to her son and jane rouse is a legal stranger to her own daughter. it also brings the loss of important economic resources, we have lists all those. it brings psychological injury. we had a doctor explain that no matter how confident, how devoted, how caring that second parent is from the child's perspective, some children will suffer from an am bigous

socially unrecognized seemingly nonpermanent relationship with the second parent. in a majority of the supreme court added more in sinned sore. they humiliate children. they devalue same-sex couple families in comparison with their opposite sex counterparts. it brings shame to these children. the injury is especially unjust, especially cruel for our plaintiffs. a nicu nurse, an emergency room nurse taking in the babies that were left behind, a premature infant in an incubator struggling to live, special needs children, hard to place children, children of color, foster children, they took them in. >> these arguments seem really powerful if you get heightened scrutiny and maybe dispositive, t do they survive a rational basis review? >> on a rational basis, we think it flunks on a rational

basis. the test would be it requires a connection between the purpose and the law itself. that connection is missing here. first of all, the mother/father rational. the ban as the judge indicated is not increasing those mother-father families. it's not detering same-sex couples from marrying, from having children, from raising them responsibly. >> but i mean, rational basis review allows under inclusive and overinclusive laws. that's really the whole point of it, that you can, the legislature can address a problem one step at a time and the fact that it's overinclusive or underinclusive, that's what the court means is that decisions will be corrected through the democratic process. it seems like that's your point here. it's underinclusive. if you care about children, you should care about the children in these marriages. if you care about love and affection, you should care about these couples. they're just as capable of love and affection as the others.

that is just not how rational review basis works. >> in a series of cases, the court struck down lines calling what the court calls riddled with exceptions, striking down laws suffering from that classification that -- >> those were unprecedented laws. windsor and roemer were unprecedented laws. if there is one thing we know in this case, this definition for better or worse is not unprecedented. >> well, i think that to the extent that the court considers this a one factor test now, just assume for the purpose of argument that the test is whether it's unprecedented in the sense of never allowing, you know, never allowing same-sex couples before, whether it's, whether or not it ts the roemer, windsor

characterization. i don't agree that it is a one factor test. what i see, what i see the court doing is looking at these laws in full context, a number of factors, using a more totality of the circumstances approach. it matters that these are intensely personal rights as opposed to say beach communications economic interest. it matters that this was a constitutional amendment and i'll distinguish that in a moment. >> one of those rights emerging as an age discrimination case, it's a very personal right. plaintiffs have to retire at age 50 under the theory there is a correlation between age and physical fitness. of course, that's a ridiculous law in terms because you have 50-year-olds doing triathlons. the court upheld the law and i'm sure it was deeply offensive to 50-year-old, 51-year-old police officers who were more fit than their 40-year-old colleagues. that just gives you a sense of

how tough it is to get through rational basis review or overcome it. >> the rational basis standard is not a toothless one. in jimenez case, social security to some illegitimate children and not others, contraceptives to married but not unmarried persons, a rational basis review and conclusion. only hippies were denied food stamps, all were rational basis catches. the state talks about the robison case, johnson versus robison saying that the state only needs to show that the inclusion of the included group further a legitimate of the state. the state is misreading that case. the court found that the line drawn there rationally distinguished between the two groups, there was good reasons why conscientious objectivors could be denied veteran benefits and veterans could not. they were not similarly situated with respect to those benefits. in cleveland, the law failed the al basis because

purported justification made no sense in how the law treated other similarly situated in important respects. here is the problem that we have with the biology rational. michigan has a robust policy of adoption. it allows single, gay, and lesbian people to adopt. in michigan, adoptive parents have the same legal rights as biological parents. it allows donor sperm. it allows artificial insemination. cases are struck down under rational basis that are riddled with exceptions. that ban doesn't face rationale. another disconnect. people can marry without having children and people can have children without being married. infertile, involuntary, they can all marry. equal protection under constitutional law doctrine distinguishes between marriage and pro creation.

in griswold, a contraception case, a court found that married persons have a constitutional right not to have children. in skinner, 1942, habitual criminals can't be subjected to forcible sterilization, not a marriage case at all. >> the problem of unintended pregnants? >> with unintended pregnants, there is another disconnect. proof again it's the same problem with pro creation, but e end doesn't do anything to disincentivize heterosexual couples from marrying. marriage gives that to them already. the ban doesn't do anything to take it away. the idea of accidental pro creation, it's a nonrationale, there is a disconnect there between the purported purpose and the classification or the law that is in place. the right to procreate is

clearly independent of the right to marry. just scalia said that in lawrence. the bottom line is while many persons within marriages do in fact procreate, courts cannot require pro creation as a precondition to a constitutional right. as a ate is now arguing factual matter, which this is a different argument than we faced in the district court. voters must have believed that the mother/father families are preferable. that claim is based upon irrational speculation. it's based upon disproven irrational speculation. the social science consensus answer is not what matters. parents are important as p.m. two parents bring double the resources. the parent-child relationship matters the most. the relationship between two parents matters. and please note in the district court, the state fully engaged in the child process. they offered expert testimony

on the mother-father rationale, on the biological tie rationale. they don't summarize those witnesses before this court. >> the question about pacing which seems to be at the heart of this as we are looking at it, i saw a statistic in one book, i think it's michael harmon's book that says in 1985, 25% of americans knew someone who was gay. by the year 2000, it was 74% of americans knew somebody who was gay. and when you see that statistic, you realize social science statistics have nothing to do with this. all of this change is as a result of the concrete trumping the abstract, people knowing they can have relationships, be great parents and so forth and what is a little odd to me about the police officers' positions in these cases is it doesn't show much tolerance for democracy's, sometimes being a little slower than we like. i mean, we have 21 states including the district of

columbia, in one way or another now recognizing gay marriage and we have a lot of other states that i suspect are pretty close and some other states that will probably take a little longer. it doesn't have with social signs. the change has to do with people knowing one another and seeing there is no reason for these distinctions. it's just odd to me that the supreme court chose not to deal with this issue two years ago, that's something of a pacing decision. it stayed all these decisions. it's something of a pacing decision as to when the right is recognized. i guess it's just odd to me that state legislatures don't get a little bit. benefit of the doubt in terms of when the pacing is right for them. >> again, in michigan it doesn't matter what the legislators do anymore. it's a constitutional ban. >> four of the states did this through initiatives. in other words, four of the

states ruled that it came out the right way in your clients' perspective through initiatives. initiatives are just as effective as legislation on this point. >> ourselves would have to be repealed. we talked about that already. in addition, judge freedman found that the constitution is for the here and now. this court doesn't have the luxury of dodging a constitutional, dodging a constitutional challenge. in erstand that the court perry didn't decide the ultimate question. the court looks to be telegraphing in windsor in terms of some doctrinal change and if the court was intending on telegraphing, it worked. 20 straight decisions where, you know, bans have been struck down. so i think the constitution is for the here and now. >> sometimes the federal courts wait until there is a little bit more of a majority of states so that all you have are

outliers, five or 10 outlier states and that's when the supreme court steps in. >> i don't know about numbers and i don't know how many were in line when the court decide loving, we are the flyover states. we have a tendency, tennessee, michigan, texas, and ohio and nothing has been done to help gay and lesbian people for decades. on the coast, things have worked and then that's wonderful. >> it was repealed. >> that was one urban area. i can tell you in my state, nothing is happening to help gay people. in terms of the science that you talked about that, the science, this is a consensus borne of 30 years of research on same-sex parenting, 30 years of research of child development. we learned from the state's own expert that the government and universities have stopped funding in this area on this topic because of the social

science consensus, the wait and see approach is not itself a rational basis. it's not even a reason at all. >> there is another problem with the no other group in society has to pass apparent competency test for they are allowed to marry. low incomes,ave lower educational levels, who want to marry again. there is no competency test but we do not bar them from marrying, nor do we borrow -- are them from having children. the argument has been raised that a decision striking down the band would improve -- intrude on religious freedoms. judgment will not require any change for religious institutions. they would be free to practice their sacraments, rituals,

traditions as they see fit. this courtth circuit can specify that no religious current -- clergy will be required to solemnize the marriage. aligious conflict is not basis for denying fundamental rights. if and when the case was the court would have to balance competing constitutional rights the way it always has. to dourt is required this. you look at the hierarchy of rights and the level of intrusion. the court would render a decision. we have alleged that intermediate scrutiny applies here because plaintiffs as gay and lesbian persons qualify because of class status. we renew that argument here and differ to the brief and the wonderful brief of the lot institution professors.

briefly we believe the equality foundation could be revisited. it does not require a decision because there is an inconsistent decision, equality foundation was inconsistent with the supreme court that requires modification. the decision, it could be [indiscernible] court a class the -- applies the cleburne factors. davis scarborough did not have to address the standard of scrutiny because they decided for the plaintiffs on other grounds. the majority in lawrence through justice kennedy referring to the authors of the equal retention clause and the due process clause wrote that the new that

"times can blind us to certain truths and later generations can see that laws once thought necessary and proper serve in fact only to oppress." in our case is what we should remember that over the course of history on occasion we as a society have lost our footing. and our humanity. eventually we write ourselves. -- right ourselves. all citizensn for for all time. it is simple, it is dynamic to my and most of all, it is humane. it can and does be interpreted to acknowledge a changing society. in an emerging recognition that some laws do discriminate against the marginalized, the unpopular, and, in this case, the most vulnerable members of the society. we know better now. there is no reason to treat people this way. we have -- ask that you affirm.

>> thank you. you have some rebuttal? a a few quick points, your honor. our society has a mechanism for change, the amendment process. that is not a mechanism for change, that is a mechanism for preserving things that are deeply rooted so there is an amendment process that is available at the federal and state level. there are six things on the initialn 2012 to the process. there were six different measures. that goes to the point that there is a state that has conferred -- to discuss in windsor. in discussing the dignity that had been conferred, that goes back to the point about democracy. people can for that by voting

for it. if there is going to be change it is not through the courts but through the people. andaine, maine went one way people rejected the referendum. people reversed course. idea --u have a long any idea how long this would take in a south. and what a shock that was down there. >> living violated the equal protection clause itself. it imposed invidious racial discrimination. >> you told me that before. the point being made that the reason that there has not been more in the way of analysis against gayation and lesbian people is up until

11 years ago their conduct could land them in prison. in many places. you cannot say it is not deeply rooted, that they have a right to marry. because aside from the right to marry him i have had the sheriff in the hall outside their bedroom trying to find out what they were doing in privacy in their own homes. >> it would be a question about whether it is the right to marry or the right to same-sex marriage and windsor entered that western. windsor talks about the history and recognizes it is not deeply rooted. >> because the conduct at the basis of things -- same-sex marriage was until 2003 potentially criminal. does that not make any difference at all and then the supreme court told us that it should not be considered

criminal. i have heard people refer to it as us and him occurred.on has and it was back in that beginning of that time when we had the michigan marriage amendment. was it not? i thought we cleared that up. >> that is correct. subsidy was about rights, privacy. it is not about -- >> it was about the fact that that conduct could no longer be a crime edit could no longer jeopardize someone engaged in that conduct with the prospect of going to prison. >> that is true but the court o'connor'sin justice conference, there is a difference between private conduct and public recognition.

-- has to look at the guideposts in the reason goes back to this importance of democracy in our system. -- most basic right we have is the people. and we can do that by amending the constitution. it should not be up to the courts to take these of the hands of the people. it seems particularly interesting here where it does seem to be a particular trend that society is moving in. it recognizes that the victory is a truer victory and a place -- the courts decided it deprives people of an honest picture. this is an issue that has left the states and it is rational for the people who have continued to promote the idea that in general, it is a good

thing. we would ask you to recognize the fact that the decision taking the set of people's hands undermines democracy. this is not an issue that people of goodwill, reasonable people of good will can disagree about. i think this is an issue that reasonable people can disagree about as you can tell by the voters in the six circuit who have weighed in on this issue. >> thank you. we appreciate both of your sets of briefs and your oral arguments today. thank you and the clerk may call in next case. "new york times" had a story talking about this particular case. this study march of judicial approval ran into some three-judges a panel heard arguments. in three hours it appeared that neither side could take it --

victory for granted with the ohio, and michigan, tennessee with -- were heard. many legal experts expect this issue to go to the supreme court. the head of the centers for disease control testified on capitol hill about the recent ebola outbreak and the two infected people being treated. he can sit the entire hearing sunday at 1240 -- 12:40 p.m.. here's what they had to say. >> there is some strict control possible and there has been misconception about this. ebola is not as highly infectious as something like influenza or the common cold. what is so concerning about ebola is that the stakes are so high. a single lapse in standards in infection control could be fatal. that is why the key is to identify rapidly and strictly follow infection control

guidance. it is certainly possible that we could have built people in the u.s. who developed ebola while here after having been exposed elsewhere. it is possible they could spread it to close family members or health care workers if their infection is not rapidly identified. we are confident that there will not be a large ebola outbreak in the u.s.. we are confident that we have the facilities to isolate patients, not only at highly advanced ones like the one at emory but also richly every major hospital in the u.s. what is needed is not fancy equipment. what is needed is standard infection control rigorously applied. forave released guidance doctors and other health-care providers in the u.s. on identifying, diagnosing, and treating patients and guidance for flight crews, cleaning personnel, and cargo personnel. fundamentally, to end here, we have three roads before us.

we can do nothing and let the outbreak region i do not think anyone wants to do that. we can focus on stopping these outbreaks and that is something we will certainly do. or we can focus not only on stopping these outbreaks, but also in putting in place the laboratories, the disease detectives, the emergency response systems that will find, stop, and prevent future outbreaks of ebola and other threats. we do face in this country a perfect storm of vulnerability with emerging if actions like ebola and the ones we discussed in our last hearing intentionally created which remain a real threat. we have unique attack -- opportunities to confront them with stronger technology, or political commitment, and success stories on real progress around the world. earlier this year, the u.s. joined with the world health organization and more than two dozen other countries to launch a global health security agenda. that global health security agenda is exactly what we need

to make progress not only in stopping ebola but in preventing the next outbreak area the second -- outbreak. the second document we have provided provides a summary of what the mapping is between what we launched in february before this outbreak was known or reported to have started and what is needed to stop the ebola outbreak. they are closely aligned. the president's budget includes a request of $45 million to cdc to accelerate progress in the detection, favorite -- prevention, and response. a former secretary of state for africa said to me citing his decades of work that cdc is the 911 for the world. and though i was happy to hear that, i realized that what we want to make sure is that every country or at least every region has its own public health 911. that will be good for them, it will be good for us in terms of safety, it will improve economic and social stability, and

expanding that type of work strengthening global health and security will not only stop this outbreak but also prevent future outbreaks and stop them faster if they do occur. thank you so much for your interest in this. testimony.n of the you can see the entire hearing online. on sunday 12:40 p.m. eastern. douglas brinkley, the co-author nixon recent book "the us this morning. >> that was president nixon before his last day in office making that speech. were you alive at that point? >> i was a little boy living in ohio. i remember being riveted. we were watching tv like the whole country was. we did not know whether this was a dark day for america. the president having to flee washington, d.c. in disgrace or

was it a great day. even someone who is president was not above the law. historyyou look back at was his was his resignation inevitable? rex it became inevitable as the tapes show us. and annot abuse power degree of thuggery and ask act not to reap the consequences of that. some people forget because everyone vocus is on nixon's darkside but that. people wereime playing loose. kennedy had issues dealing with mafia bosses and you had ginger huger -- j edgar hoover doing wiretapping. you had the abusive power that was being generated but nixon stepped into it. he did his own undoing by taping the crimes and

misdemeanors. >> we will get into the nixon tapes in just a moment. book onanan has a new president nexen. here is his op-ed. nixon's elites toppled -- nexen. was he blameless in watergate, by no means. to -- not act decisively and failed to tell the american people the truth. it goes on to say that this town is full of not garden-variety snakes but vipers. >> nixon never did well with the press. it goes back to the alger hiss

case and the left and the media sought nixon as the enemy. a lot of democrats, ike is ok but we cannot stand vice president nixon. he is the hardliner, he is the right winger. and then john f. kennedy the nixon very closely by a hair in 1960. everybody thought nick said was finished. he could not win as governor of california. the fact that nixon stays to come back in 1960, that he was able to notice the tumultuous year of riots in the streets and the deaths of martin luther king and bobby kennedy, after that year, nixon standing on top, it angered the left and so they were always looking to get nexen but he did well his first term. our book documents would he did well as -- right as well as what he did wrong. it destroys him. at the end of 1972 after winning

over 70% of the electorate, nixon months before he goes into decline said someone should write a book about this year. great cold war presidents. by the next year it was flooding straight downhill. 1971 to 1973. but you start off by saying that johnson, president johnson, advised president nixon to put in a taping system, and he declined. guest: very much so. look, f.d.r. did some limited taping. john f. kennedy did taping, but selectively. kennedy looks great in the tapes t. shows him in command of the cuban missile crisis, for example. john f. kennedy did taping, and it helped -- i mean, it's helped l.b.j.'s reputation because it shows his passion for the poor. it shows the great society in

action, civil rights and the rest. but with nixon, he came in and said none of that taping for me. johnson's trying to convince me it's a good idea, i'm not going to do it. but by 1971, february of 1971, he couldn't help himself. he felt he was ending the vietnam war. he felt that he was on the verge of making a breakthrough soon with china. neil armstrong had gone to the moon. he had created the voormental protection agency -- the environmental protection agency and was dealing with desegregation in the south and giving young people the trite vote at 18, and he thought he was going to need to document his own greatness, and it was his unundoing because it was voice-activated. it wasn't selective for the phone. he bugged the whole white house. he bugged camp david. so one of the reasons this book is just coming out now, the national archives has been processing tapes, and a big batch just came out in august of 2013, and in it, you can find so much just dynamite to

destroy nixon's presidency in his own words because he's constantly using kind of abusive language towards people, and really, it's the bigotry and anti-semitism that's what's doing the most damage to nixon's reputation from the tapes. host: as regular viewers of c-span know, doug brinkley is a friend of the network in the sense that he participates in a lot of our programs. he has a lot of titles, and he's always willing to come over and take your calls, talking about different historical events. today we're talking about the 40th anniversary of the resignation of president nixon. doug brinkley, presidential historian, professor of history at rice, and a james baker institute for public policy fellow. you have written several books on history. you're a contributing editor all over the map. jimmy carter, you're his official biographer, is that

fair? guest: well, i wouldn't say official. president carter gave me access to diaries and papers. scommoip what else are you currently working on? guest: a book on franklin roosevelt called "rightful heritage." it's about how f.d.r. attacked the dust bowl, the drought, how he got very concerned about forest fires. i today's "usa today" it's the 70th anniversary of smoky the bear. there was a real fear that the japanese bombs were going burn american forests during world war ii, and that's when smoky the bear was born, during the roosevelt administration. i'm looking at how he saved places, like the everglades and big ben, king's canyon, the olympics, all over america. i once wrote a book on theodore roosevelt and conservation. this is a companion volume, looking at f.d.r. and the new deal and how it put so much effort into the land, where all of our top soil had blown away. i deal with a lot of

agriculture and interior department issues in the 1930's and 1940's. host: who is your co-editor, luke nichter? guest: he worked at span spafpblet he's from my same home toufpble he's a professor at texas a&m. i am one at rice. when i was doing a book dealing with john kerry and the vietnam war, luke helped me find some of these conversations, because he's running a nixon tapes project. he's trying to crans scribe all this. and he pointed me in the right direction, and then i was doing some work on walter cronkite, and pointed me in the right direction of a conversation between nixon and chuck colson regarding con cry. as we got to know each other, become friends, the idea was, look, this stuff is just unbelievable. luke has a better access to this material and understands it. he can actually hear the voices in the room. it's tough going for a lot of people. i talked to bob, my friend the other day, and he said, boy, i couldn't listen to the tapes

long, so he just have to really strain, but luke has it down to an art form. we collaborated and tried to bring up what's the most important from the tapes, not watergate-related, what else can we learn, particularly u.s. foreign policy? that's what nixon cared about the most. host: and this is nearly 800 pages of two years of tapes. one thing i noticed is president nixon interrupts a lot. guest: all the time. he never lets anybody finish a sentence. nobody ever stands up to him. i mean, actually, henry kissinger is the one who comes out badly in this book, because, you know, nixon will say something half-baked or crazy and there's kissinger, yep, boss, yes, you're absolutely right. the amount of this around nixon is staggering, and nobody wants to challenge him. and this is always -- this is a lesson. presidents have to be surrounded by people that are going to challenge them. you just can't become this -- otherwise you become very isolated the way nixon was.

he was really a loner, didn't have many friends. haldeman worked for him. i think if there was somebody within the white house structure that nixon was close to, it was haldeman. he was actually fairly close to his speech writers, bat into kanaan being one. if nixon wanted to do a red meat speech, he turned to buchanan. he also turned to william safire. on domestic policy issues, he'd turned to ray price. but, you know, there was -- he could not stand his own secretary of state, for example, william rogers. he wanted nothing really to do with the state department, nixon. he wanted to run foreign policy out of the white house with himself as the master puppeteer. host: june 13, 1971, richard nicks sandon alexander haig, nixon finds out about the pentagon papers.

guest: yes, and nixon gets very worried. one thing about the pentagon papers, had nothing to do with nixon. they were all about lyndon johnson. you know, it's an odd relationship he has with johnson. he can't stand the kennedys. it comes bursting through the book. i would always say there's gemousy towards the kennedys. at one point, nixon said they say he had courage and he was well read, that he was a beat man, and that he had, you know, was a philosopher. this is bunk. i knew jack kennedy. he's none of these things. but then he pivots and says itself to know known for guts and courage. kissinger says, well, sir, i know you're known for competence. he said i want guts, can't we get one thing across to the american people? guts! but he liked lyndon johnson, and he very much worried that these pentagon papers were going to tell secrets of our state, they were going to tell secrets of what's going on in vietnam, and it was going to

enrage the anti-war movement, which was already hot under the collar. so he tried to sequester the pentagon papers, of course, loses those battles, but nixon administration does very many usual things, like trying to break into a psychiatrist's office to get his files. it shows nixon anticipates outrage of leaks. i think nixon hated the leaks ore. the combo is when you get nixon at his worst. host: and in your note prior to the transcript of the tape, and you mr. nichter write, another occasion, this could have been a chance to score a political victory. however, nixon's department of justice launched a vigorous yet ultimately successful defense of government secrecy and the records documenting private war deliberations that went all the way to the supreme court.

the event played a direct role in creating the white house plumbers, the group tasked with preventing leaks to the press whose existence became popularly known during the nvestigation into watergate. guest: nixon was vice president for eisenhower for eight years. he knew when ike ran in 1952 for president, the korean war was raging. eisenhower said, elect me and gill to korea. that meant that if -- and i will go to korea. that meant that if you left me, the commander, i'll find a way out of the war that turned unpopular, and sure enough, eisenhower is elected six months later we're out of korea. nixon had that opportunity in 1969 or 1970 or 1971 to just get out of there. he did not think the vietnam war was winnable, yet he -- so in the pentagon papers, it was showing the malfeasance of mcnamara and johnson. second said, look, these guys were a mess, this war was a mess, blame it on kennedy and

johnson, blame it on the democrats, grabbed the high ground and moved policy in a different direction. instead, he got more and more mired in trying to control the southeast asia situation and famously expanding the war into cambodia and laos. host: doug brinkley is our guest. topic, the 40th anniversary of the resignation of president nixon. in new york, democrats line. ralph, you're on the air. caller: what an honor and pleasure to talk to douglas brink lee. i'm a proud worker from upstate new york, and i just have a question, the focus for the blue-collar, working-class worker, did doug brinkley find anything in the tapes to -- for nixon to vote for nixon, if we focus on the blue-collar, working-class worker, to get the worker to think of their cultural values over their material needs, nor to break

them away from the new deal coalition, and i thank you very much, bye. guest: good question. yes, what you have with nixon is he's appealing directly to blue-collar workers, to the point where he embraces people like johnny cash and merle haggard, country sirnings, because he thought they represented the blue-collar worker. he wanted to help destroy unions to a degree, or at least limit their power in politics, and he made appeals to the flag, to patriotism, that we're not going to cut and run from vietnam. nixon had a pretty good read of middle class america, although he didn't hang out with them a lot. he was a loner, as i said. but remember, his idea of the silent majority, that nixon was saying that most americans want to win in vietnam. they want a peace with honor, and that they care about american values, main street values, rotary clubs, kiwanis

clubs, on and on, and that this anti-war movement and media liberal elite, based out of new york and washington, were skewing what was really going on, meaning most college kids in america were just going to college. it took five anti-war protesters to burn a flag, there would be the camera, and t's on the nightly news. he showed a majority of americans winning the vietnam war, and so he constantly listened and looked to polls and found ways to create a new coalition. some people will say quite cynically on issues of race that he's trying to appeal to, you know, to what becomes known s george wallace voters, segregation in some ways, yet pair docks i canly, nixon is fighting for desegregation and for even affirmative action. figure, ry paradoxical

but he thought, like reagan, today win over some of the blue-collar labor workers and go group by group. for example, the teamsters were more apt to vote republican than, say, the united nine workers were. host: robby calling in from florida, independent line. hi, robby. caller: hi there. can you hear me? host: we're listening, ma'am. caller: i just wanted to thank mr. brinkley on his hard work, and i just wanted to say one thing, that nixon was the beginning of party against party. according to george washington in his farewell address as he was leaving office, our founder said that the spirit of our nature is rooted in the strongest passions of the human mind, but the alternate domination of one faction over another sharpened by the spirit of revenge had perpetrated the and without

looking forward to an extremity of his time, what should never be entirely out of sight, the spirit of party are sufficient to make the interest and duty f a wise people. agitate the community -- host: all right, robby, knowing we got the point. president nixon was the source of party-to-party conflict. guest: oh, we've had party-to-party conflict since 1800 when thomas jefferson and john adams ripped at each other. i think one of the important things, particularly looking at watergate, is to always remind us that modern times aren't as uniquely oppressive as we think. i mean, look at the civil war in this country, where we fought, lost over 600,000 people dead, lincoln getting stuck in washington, d.c., and the battle of bull run right outside of d.c., the confederates wifpble i mean, you look at an event like that, and then watergate starts looking quite small.

and also, he didn't invent the ugliness of party fighting. it is true, in 1968, he was very worried about hubert humphrey becoming president, and five days before the election, johnson started doing a bombing halt in vietnam, and there's some evidence that nixon wanted to not have the south vietnamese come to make any deal, all with, you know, with lyndon johnson, because vietnam was the albatross around humphrey's neck. he was vice president. and in 1972, you know, it's definitely, you see nixon hammering george mcgovern, and, you know, being for amnesty and abortion and that's what he represented and ran a touch-end derby campaign in 1972. but i will tell you, there have been tough and drty campaigns throughout american history. nixon maybe did take things to a paranoid level unseen before,

where he wanted to break in, or his henchmen broke into the watergate and the whole dirty trick squad. and it is true that after nixon, people started feeling a cynicism about politics more than ever before, and nixon contributed to that, largely. host: it was june 17, 1972, five burglars arrested at the democratic national headquarters in the watergate complex near washington, and nixon tapes, june 20, 1972, 11:26 a.m., richard nixon and haldeman discuss watergate on the taping system for the first time. it goes on to say that an earlier portion of this conversation includes the 18 1/2-minute gap, anee ray sure that his personal secretary contributed to, but is still not fully explained. the way that nixon starts the

conversation, you and nicth write, suggests that perhaps the erased portion included a discussion of wire tap. guest: yes, and that is the beginning of watergate, and we include it in this book. now, watergate, a scholar named stanley cutler did a book called "abuse of power." he's from the university of wisconsin. he's the one who really got the tapes going. if you want to read about watergate, read cutler, but also john dean has recently brought out a book. luke and i put in some in 1972. there wasn't a lot of watergate in 1972 on the tapes. it explodes in 1973. our book really is about 1971 and 1972. so you're getting the early conversations, by 1973 it's dominating the white house. we're hoping to do a second volume dealing with foreign policy in 1973, but also with the watergate as a primary focus. there's still new material to come out on watergate that

aren't in cutler and dean's book. that 18 missing minutes, we just don't have it. nobody has it. we don't know where it is. if anybody has it, please call me. because that would be a big breaking news story. host: a little bit. guest: yeah, some people think rosemary woods could not have been the one to erase it, that nixon did it himself. it's a mystery, but nevertheless, it doesn't matter a whole lot, because nixon did enough things on the record that we have a lot of people are making noise out of the book, a university of virginia professor, spent a lot of time with the tapes, and he's talking about nixon saying get into the brookings institute, and i don't care what you blow up, get documents out of there, you know, using words like they'very and things. there's enough on the tapes without the 18 1/2 minutes to indict nixon on certainly the coverup of watergate, not

ordering the break-in itself. host: you write that various attempts to recover the erased portion have been unsuccessful. doug brenk leave mentioned john dean and his new book, "the nixon defense." john dean this weekend on book tv sits down with "the washington post's" bob would say ward. they spent an hour discussing the nixon defense, an hour discussing watergate. you can see that on book tv on c-span2 this weekend. dan, bridgewater, new jersey, republican line. you're on with doug brinkley. caller: hi, i definitely would l buy this book, and i will read it carefully, as i did all of mr. brinkley's books. i'm really afraid of the phenomenon where, if if you have a hope, your brain fills it in with what it thinks should be there, and i'm afraid that the tapes, after such superficial readings, that

history is now painting a picture of nixon that's dwoud of this. having dealt with him, having known him, i think it's a big mistake to say that haldeman was his friend. the fact is he had ideas in policies, and he trusted no one within or outside of his camp. there may have been a lot of things wrong with him, but he did have a multitude of policies and ideas that i would say really looked to the betterment of this country. unfortunately, as you pointed so long as they have the dynamite quotes and the connections, so that in the end, the depth of nixon and part of it may have been his madness, so it would have to be very deep, unless that's there, and these tapes do not represent that. they represent the sliding over

the ice on to which a very deep pool. host: dan, thank you. guest: you make a number of very important points. henry kissinger has famously said don't trust the tapes, it's a sideshow. because what you get in the tapes is often just nixon. nixon is the only one in the room ultimately for most of these conversations and knows what's going on. ehrlichman didn't know he was being taped. kissinger didn't know he was being taped. it's one-side baseball. you know you're being taped and others don't. kissinger also said, use the tapes assist a source, compare it to memorandum and notes and things, and you'll get a bit of a fuller reading. i agree with all of that. i also think that when somebody does a crime, you focus on the crime f. somebody goes to jail for a crime, it doesn't mean their whole life they didn't do a lot of good things. they may have raised a family well, been a good samaritan.

they get busted for something they did wrong. there's much about nixon that people can like and admire. i mentioned earlier in the program about conservation, and nixon was a reluctant environmentalist, but he create the environmental protection agency, clean air and water, and working on oceans. it has to rank as one of the top five voormental precedents. it shocks people that that's nixon, but there it is. with all that said, look, if we can't as scholars care about a fly on the wall in history of everything that's taking place in the oval office being able to listen to the transcripts, being inside the sausage factory, what can we trust? a lot of memos are about covering ones self. the tapes are, i think, more raw and more real and more valuable, and yet, you're right. they are what's going to destroy nicks sandon history, because people will find quotes

that are very damaging, and they live on. it is an i gotch aculture, and nixon provided the source for everybody. it's almost suicidal that he did not burn these tapes. in a points out to a kind of madness in the man. at one point he tells henry kissinger, let the chinese think i'm a crazy man, i want them to think that, why not? because he wanted them to know who knows what nixon is going to do. he's capable of doing anything. it's a lot of grand strategy in this book ark lot dealing with china and how he orchestrated , so famous 1972 trip there's a lot of high policy in this book. it's not just the i gotch a, so i hope you get a chance to read it, and you might be impressed with the way nixon dealt with diplomacy at various times. host: any proof that presidents post-richard nixon have used taping systems in the white

house? guest: no, you'd be a fool to use them, even the limited ones. i don't think they help. i'm sure when you're dealing with a duel putin it might be taped because they might want to dissect every word, so i'm sure there's that kind of taping, but the idea of casually capturing every kind of word, it's gone the way of the dodo bird, you know? it's a form of extinction now. i did ronald reagan's diaries, and he did the right way. he would write every day what he wanted to write, had the discipline to never miss a day, keep the diaries going, and you have a sane document. bill clinton made tapes with historian taylor branch, where it was sort of an historian coming in and talking to him. that's all very different than doing this sort of voice-activated, pick up everything in the room. why did nixon do this? he did not think he was a petty politician. he didn't think he was a mcgovern or a humphrey or mccarthy.

he thought he was a world-class leader, and he read greatly in world history, and he thought he could truly be seen as one of the giants of foreign affairs of the 20th century. and that when he left office, he would go back to san clemente and maybe do a five or six-volume memoir. en had are you kissinger certainly has made a career out of writing books like that, and nixon would have used the tapes ads the grist, given memory, he could actually quote what somebody said to him and it would have been accurate. his downfall is he never thought anybody could take these tape as way from him. they belonged to him. so imagine his surprise when the supreme court votes unanimously that you don't own those take place, that's the moment nixon realized that his presidency is sunk. host: when did he stop taping? guest: he stopped taping in july of 1973, when alexander haig said it's over, stop the insanity. from became a brief moment,

people use the tapes burnt tapes, but dewey race them? what do we do that? just like that, 18 1/2 missing moments, people, even liberal iconnell son rockefeller, a man of great integrity by all accounts, he was telling nixon get rid of the take place, and nixon just wouldn't do it. it was his golden egg. he was not a rich man. he thought that this was going to be what he had with his wife pat, what he would have as a record for his time in government. his ego was very large. the narcissism of nixon, all president realize narcissistic. you don't want to climb to the top of the mountain, say i'm the best person to be president without a healthy he'll owe. but nixon's goes in odd directions. there's something not psychologically right about him. host: one tweet says, you going to ask him about china or just spend the morning trashing nixon? guest: well, i just mentioned

china a minute ago. maybe the caller wasn't listening. i just said much of the book is dealing with china and the china opening. the big deal about that was, it was a three-way deal, soviet union, chain ark and the united states. what he was trying to do is wedge china away from the soviets. so much so that he thought that if you bomb a lot in vietnam and north vietnam it would impress the chinese about your toughness, and so it had a deer it incident quality to it, that it would deter the adventurism by beijing into, let's say, hong kong, taiwan, or japan. and then yet, at the same time, he would back pakistan. nixon was a huge admirer of the country of pakistan, and that was a proxy state of china, and they were fighting india, and nixon could not stand the country of india, because they were close to the soviets.

nixon hates russia, not china, and he wants to outfox the soviets every step of the way. he says very many ugly things about the russians in the book, you know, that unlike the chinese, they slobber over celebrities and that they're basically a mob and you can't do business with them. the chinese, he felt, were honorable people that he could do business with. he was surprised he never felt the chinese broke a promise hat they were making with him. today he's very loved in china f. you're a businessperson doing business in china, they'll give you a nixon walking tour and show you the sights he saw in 1972. here in the united states, nixon ranked, because of watergate, at the very bottom rung of american presidents. host: jack in north providence, rhode island, thanks for holding on.

you're on with doug brinkley. caller: i'm a conservative democrats, and where nixon should get credit, it was a brilliant strategic move, because that was one of the beginnings of defeating the soviet union because he did, in fact, create that wedge. secondly, one other point that the media is liberal, nixon had more intellectual firepower than all these other presidents put together. the man was absolutely brilliant to the point where he did have some madness to him. he believed he was invincible. but you look at him, and you see the way he speaks and his mind is so calculating, so bright, brilliant lawyer, corporate lawyer in new york, and he wasn't for money a self-made man, jack kennedy was a joke and a fraud, ok? he did serve in world war ii, but the greatest president was reagan, because reagan had strategic vision, ok?

but the media hated reagan, too. when he we want out to the soviet union in the early 1980's, they all thought he was going to start world war ii. the soviet union even believed he was going to launch a bomb at them, ok? host: jack, bring this to a conclusion. caller: the conclusion this sth -- the media is super biased, and they just love -- they love obama, who's incompetent incident, ok? the man is competent. host: i think we got your point, jack, thank you very much. guest: you point out the intelligent of richard nixon, and one of the things that comes through in the tapes is that. he's an exceedingly well read person in history. it will surprise people just how -- and refers to history in his thinking all the time. during the vietnam war, he's always getting angry at the air force. he thinks they should be taking it harder to the north vietnamese, and he'll say things like, look, i know what

happened in the battle of the bulge. hear what the weather conditions were, and we went on bombing raids, and now you're telling me because of fog we can't bomb? he was always bringing historical references into things. you know, character matters in a president, and you've got to, and also, it's not smart to war with the press. all presidents get frustrated, but the great ones, the ones people really respect, are ones that learn thousand manipulate the press without them realizing it. peter roosevelt could do that. john kennedy knew how to do that, sandronled reagan knew how to do that. those are the four presidents that the public gets very captivated by and interested in. by having spiro ago new as vice president go after -- spiro agnew as vice president go after the big three, cbs, abc, and nbc, for their liberal bias, it was very badly done. it wasn't that the news is done, that the news is too liberal. fair enough. but trying to go out and

destroy the "new york times" or e pentagon papers, cbs, it backfired. anything that backfires on you means you're not so smart, there's subtleties. you don't always win by going right at people's throat and trying to rip them out. you have to have a velvet fist. nixon would just want to rip people's hinges out, and he created a lot of enemies that way. he made his own enemies list on reporters, and he had the i.r.s. look into people's lives that were his enemies, and they didn't forget. the media went at nixon, and they got him. host: jake in tampa, florida. before we take your call, i'm sure, if you're watching us right now, you probably saw the alert that the u.s. has dropped a couple of bombs on some isis positions in iraq.

just want to make sure that everybody's aware of that. doug brinkley, from a historian's point of view, do you have any comment on the fact that targeted air strikes in iraq were authorized last night and a couple of bombs were dropped today? guest: president obama, because he won the nobel peace prize and came in like eisenhower, he's been saying big policy has been getting out of iraq and get being out of afghanistan. proving to be quite hard. but yet, no troops, we're not putting u.s. troops in, so we're doing limited bombing. i think the president will find most of the public backing this action. lindsey graham has been calling for this. i think it's the right thing obama is doing, and i think he'll find largely bipartisan support. they may say we told you you should have done this eastern, your iraq policy is a mess, but yes, at this moment in time, you've got to go forward, and we've got to do humanitarian d to help the iraqis in need

right now. join jake, tampa, please go ahead. caller: yeah, i'd like to talk vietnam war. my question is, why do all the democratic presidents have no vision of foreign policy? what's going on today with what's going on in ukraine and iraq and all over e world, and it seems like they seem to have the policy. world war i was wilson. orld war ii was f.d.r. he was the only man to use a mass indiscretion, two of them. host: all right, jake, i think we understand where you're eaded with this.

guest: look, the cold war, if was won, was won by republicans. even presidents like gerald ford and jimmy carter contributed to it. carter by demanding that soviets being release and had pushing for human rights and freedom of religion in the soviet union. gerald ford, the helsinki accords, but reagan gets across of credit because of the tough policy and the way he very astutely handled foreign policy . but to make a broad-brush statement that democrats aren't very good at it, harry truman was the father of nato. he felt with the berlin lockade of 1948. he created the joint chiefs of staff, the c.i.a., the department air force, the whole pentagon apparatus, on and on,

and jack kennedy guiding us through the cuban missile crisis. most scholars feel did he an excellent job with that, creating the peace corps, which has been a huge success, out foxing the soviets over berlin. , so you know, jimmy carter, who's considered by many a failure during the camp david peace accord, which still is on the books as the great event in middle east history in the last, really, 100 years probably, or at least since the creation of israel. meaning it's not a right-left issue. if you're frustrated with obama's foreign policy, you may have been frustrated with bill clinton's, i do think that people think that republicans are more hawkish, which isn't always true. john f. kennedy was much more of a cold war hawk than say richard nixon was in some ways. that cold war presidency, it was both bipartisan, this

anti-soviet deal, and let's win the cold war, it's just that the wall came down when 41 bush was president, and it was the result of reagan's ratcheted up rhetoric and policies. host: may 19, 12:55 p.m., henry kissinger and richard nixon talking about vietnam in the person service and the defense department. nixon, it is not just the foreign policy, the pentagon is as bad. a bunch of spineless bastards. kissinger, well, i just gave hell to john mccain, admirable john mccain. he goes on -- nixon goes on to say, i twoish god, what did mccain say? well, he said he'd have to check into it, i said i'd never seen the president so angry. he is, and he wants to stay on the job, nixon said i want him to stay on, but damn, not this way. he's going to start taking his

orders from here or else. now i'm not going to have this crap anymore. guest: it's a little bit what i was mentioning earlier, nixon war ago lot with the military. you should hear the conversations with the air force. it's just brutal. he thinks the military is not wanting to win vietnam, that a malaise or fatigue has set in. that's a presidential order, and starts, well, fire them at the pentagon, get rid of them. they're not hearing me, and he's constantly telling kissinger, get the message across. now, once those military guys get on the phone with him or show up. he's much more -- much kinder in front of them. he doesn't talk like that. but behind their backs, he's feeling that the pentagon is spineless. host: tony, louisiana, you're

on with doug brinkley. caller: i have a nixon what if question. would he have been as paranoid, and would he have been a much better president had he been victorious in 1960, and would he have taken us into vietnam? guest: well, what an interesting question. the problem with what if's is it's just speculation, but i think he would have been a better president if elected in 1960 than 1968 because he would have had less of a chip on his shoulder. the chip very very big in the 1960 because he really felt he won, that j.f.k., due to mayor daly's grey yard vote, turned the votes to to kennedy and thatter have been president and a bitterness ensued when he said he won't have nixon to kick around anymore, and then he got bad press when he ran for governor of california. he sees, he gets angryier and

angryier, particularly towards the media by 1968. he may not have been quite as bitter if he was elected in 1960. however, with vietnam, i don't know. i mean, we don't even know now whether kennedy would have put the troops in, and i always call vietnam lyndon johnson's war. it's johnson who commits the massive amount of troops. now, it's true it's nixon's war too because he increases it. you could call it johnson and nixon's war, but the original crime, in my vureks wasn't kennedy sending advisors to vietnam or nixon continuing it, it was johnson getting us mired over there in the first place. host: doug brinkley, what what are you doing in town? why are you in washington? guest: i came here with my wife and three kids, and we're still on washington. we're going to see the sights of washington. yesterday we were in old alexandria. we went out to mount vernon.

that was the first time i took my kids there and spent time there. we've been doing the monuments and memorials, the national portrait gallery. we're excited to go to the zoo and dealing with the pandas and nixon, one tape to try to deal with mating habits of pandas, which is a tim cal moment in the tapes, but then we went about to the zoo, see the pandas, and just trying to en jew our summer for a while or so. host: gary from florida. guest: pleasure to talk to you, mr. brinkley. i admire your work, been a great admirer for many years. i wanted to reflect on the fact that the rape congress has now sued president obama. it's come up on the anniversary of the time when the united states congress has sued richard nixon. would you do a comparison, and what's the net involved with this?

i'll take my comments off the air, thanks. >> i find the lawsuit against obama frive russ, it's just a politically show to show that this is a one that is doing wrong. continuing of the disdain of obamacare, major legislation, the great legacy piece for obama's presidency, that no republican voted for it. so there's just frustration at obama, and it's coming out with this lawsuit to the point that it gets people talking about it. the same thing with impeachment . there were threats to impeach bill clinton and threats to impeach george w. bush. i think particularly in second term, fatigue comes in, and it just takes a couple of people to start using the i word, the impeachment word. none of this is compared to what was going with with nixon. with nixon, you're dealing with real true criminal abuse of power, y