unanimity can survive. once they are forced to look back at the case, it is going to break apart eventually. >> personnel changes. what is the outlook? assuming there were to be a resignation in this administration, what kind of chances with the president have to appoint someone -- let me ask it this way. justice ginsburg has said words to the effect of, who are you going to get better than me? i don't think that was the statement of an egomaniac but it was the statement of a political realist. >> certainly in terms of who is likely to step down, everybody focuses on justice ginsburg. in part it is because there is no sign of anyone else having

any likelihood of that anytime soon. you never know what might happen. in terms of what would happen if justice ginsburg did step down, it depends insignificant part on which party controls the senate. that is going to be the big question. we will know more about that shortly. it is a political process question and it depends on who votes for who. >> i think it is what controls the senate. we have already seen the filibusters eliminated. while they are still available for some dream court -- supreme court nominations, it would be naïve to think that harry reid would not get rid of those as well as there was any pushback on whoever the president nominates. if the democrats maintain control of the senate, the president could appoint another ginsburg if he wanted to. i think he could easily get 51.

that is all he will need when harry reid takes the next step. >> chief justice pater decried the partisanship around nominations and reminded us that scalia was unanimously confirmed. ginsburg got just a handful of votes against. with the last four nominations, we seem to be in a different climate. what accounts for that? >> you can't talk about that without going back. the whole system has really changed from one of significant deference to the president to one in which there is a lot of pushback and a lot of fight. my perspective is that it was started by the democrats making a huge deal out of borg's nomination. we are now in a world where that

is how nominations are dealt with. i don't think we can step back from that now. you are not going to get both parties to disarm simultaneously. >> post borg was kennedy, breyer and ginsburg. it didn't change every single nomination. >> now we are in a different world. everyone things we are still in that -- let the other panelists see if they think there is hope. >> i don't think there is any downward ratchet in this process. it can only get worse. even when it can't get worse, it does seem to. >> an interesting question is what happens when you have the senate in the opposite party control as the president. up to now, the last few nominations, you have had the senate controlled by the same party as the president. if everybody is voting on party lines, the nominee will squeak by.

things get much more complicated if the other party is controlling the senate. then everybody votes on party lines, they reject the nominee, the president comes back with another nominee. you keep having partyline projections. -- rejections. does the president move more towards the center in terms of the nominee or say, i am just going to get more ideologically towards my end every time and keep playing this game out. that is the reset button question. nobody knows how that is going to play out. >> we have seen that before, 1968. that was johnson not being able to get his nominees through a republican congress. it is messy. in terms of confirmations, i think it is important to separate two things. character assassinations of judicial nominees. to say that we shouldn't engage in character assassination is

not to say we shouldn't have strong political and intellectual debates over supreme court nominees. washington was a more peaceful town back when the republicans -- orrin hatch would get together with bill clinton. lewis powell or scalia would get through easily. what we lost in those debates was real thoughtful discussion of ahead of time about what the american people want the court to look like, what our elected officials want the court to look like, and to have their say at the beginning of the process. >> adam makes a good point. it is not irrational. as more social policy has moved over to the court, i think you are seeing more invested in making sure the bench is filled with people who share their

approach to law and society. >> then there really is no hope. we are so divided on the proper outcome of that intellectual debate. really, there can't be anything but this kind of harshness. it is winner take all and loser goes home until they win. i don't see any end to the process playing out the way it is now. >> isn't justice ginsburg's whole critique of roe v wade that they thought they could end the political debate once and for all? buckley said there are no eternal victories. these things continue on and on. that is probably the way it should be. >> so you decide for yourself whether the situation is hopeless or just really bad. [laughter] we will move to your questions.

who would like to go first? or would you like to follow the panel? here is a microphone for you. >> ok. the statutory question is cut and dry, but the fourth circuit reasoned that references to such exchanges included federal exchanges, and therefore the statute construed, supported the irs' interpretation. i wonder what you and others might think about the viability of that argument with the nine justices, all of whom say plain

text is important. >> we filed briefs in king and yes, my position is the plaintext is pretty clear. it is clear the plaintext is intentioned with the irs' interpretation. the question is whether the exchange created by the state can stand in the shoes of the state. i think you can argue both ways. this is why the fourth circuit was able to come to that position. you might not even fully get down there. some of it does get determined by your approach to discretion and deference and chevron. a lot of it may be determined by this earlier procedural point of, do we have to get deference to the irs interpretation?

if the courts decide we have to get deference, they might not think it is such a great interpretation but they have to go with it. i think there is a lot of room. the plaintext simply doesn't say that. it is an open question. i think the text is clear enough to easily sustain saying this is unambiguous text. obviously, minds can differ. >> any thoughts on that? it is so quiet in here. yes? >> hi. i guess it doesn't seem quite as clear to me that the courts have settled on an approach the statutes.

i think it is clear in ordinary cases that that is so, for example, i think there is a pretty good argument that there was no statutory interpretation. they just never got around to figuring out what the statute says except that it doesn't reach this case. they would have had to figure out the constitutional question and we don't want to do that. i guess i would worry if i were thinking about what is going to happen and hoping the statutory approach, the textual approach to statutes holds up. it is under a lot of real pressure. i wonder about that as a possible way of understanding the situation. >> i agree. i think bond tells you much more about the court approach to

constitutional interpretations than statutory interpretations. everything was driven by the effort to avoid citing a very hard question. it traces back to the hallmark of the tenure. whether you agree with or disagree with it, we saw it in the affordable care act, in austin. you are right. at the same time, i also filed a brief in king supporting the challenge. i think the position is fairly complicated. sometimes they are arguing that this was an intentional gap and the irs filled it. i think they are trying to find out which argument is going to be received better but they haven't chosen which one they liked better.

>> is this issue going to come up again? looking at the statute, there is a very strong statement from congress that the united states policy on jerusalem is this, but the remedies, what they are asking for is much smaller. they are asking for a passport marked to israel. i thought about this case quite a bit. i think it does pose a tough challenge between congress, the president and their powers. at the end of the day, the family just wants a passport. if the president can say, u.s. policy remains unchanged. at the end of the day, the court can construe the statute narrowly on the question of u.s. policy and get to the question of what something says on a passport. when i look at the case, i step back.

it is hard for me to see what the real substantial infringement of the president's recognition power is. nobody is saying that u.s. policy on statutes says this, but in this case i don't think anybody is saying that u.s. policy is different. it is just what is written in a passport. >> i think that is essentially severing the statement about what u.s. policy would be. to have something in the passport that the president and previous administrations actually would have a damaging effect on the ability to control foreign policy and recognition of sovereignty or the decision not to recognize sovereignty. you have to reject the president's judgment and sever the statutory statement about what this means u.s. policy is from the notation on the passport.

i think those are big things to do. if the court is willing to say, we are going to discount the president's judgment on this and ignore the statutory language, i think that is a very dramatic step. >> in terms of whose judgment, there is the president, but there is also what something should stay in a statute. you referred to foreign affairs. that is a line he is drawing from back when marshall was still in congress. if you look at where that line comes from, i think what marshall was saying is once policy is defined by congress, the president is the sole organ and carrying that out. that is true, maybe he is the instrument of foreign policy but an instrument doesn't play itself. maybe it is the senate and congress that should have some say of what is in a passport.

otherwise it is the president's judgment of what will and will not make foreign policy. >> the other thing i think is interesting here is that long-standing institutional judgments acquiesced by congress over the long term like unilateral recognition should get to the president. there are very powerful arguments that the president has that his judgments would be damaging, as previous presidents have also judged. >> adam does make a point that it seems kind of trivial. who is going to upset at the turkish border? >> the judgment of the number of secretaries of state, that is not trivial. it will be read in a particular

way in the foreign relations setting. do you just give that the back of your hand and risk having this affect on international relations or not? i don't know if the court is willing to give us the back of its hand. >> there is one more thing in play here. when president bush signed the statute, he said, i am not going to treat this as mandatory. that is back when signed statements were a big deal. back in 2008, president obama is giving his famous interview where he says, i am not going to use signing statements to nullify or undermine congressional instructions. i understand he was a senator then, he is a president now. it really seems like at this point, maybe somebody needs to remind everybody about where we have been on these issues. >> it sounds like in this particular case, you think a constitutional avoidance move might be right. >> sure. like i said, i am just very curious why we can't avoid the

bigger policy issue and decide narrowly on the basis of what is written in a passport. >> yes sir. >> in terms of temperature of social events like the border, where agents are collecting people, what do you think the temperature will be for these cases? what do you think is going to be the trend for this coming term? >> i am not sure we fully have the question yet. >> my question is, how is these issues going to affect citizenship? will there be more rioting? >> i think the facebook case will not result in rioting. let me ask the question in the most salient way. assuming the court establishes a

right to same-sex marriage, which i think is more likely than not, how do you think the country reacts to that? >> there is a sense that attitudes are shifting so quickly -- i think we could have answered that 10 years ago, five years ago, maybe even last year, and there is a sense that attitudes are changing quickly enough that it is hard to predict. it is very hard to know. >> i think it may have the affect of deepening the lines because of the feeling of this not being the result i would have come to. it could work both ways. it could mean everyone jumps on the bandwagon, says this must be

the direction everything is going, or people could backlash and say, i think the court is stepping out of line. you could get pushback. it is really hard to predict. i think it would be different if the court decides this year versus next year. >> how much do you think the court does or should care about blows to its reputation, authority, prestige? how much do we care about that class? -- backlash? >> a little bit. [laughter] i think it is human nature for them to be -- to care about how their decisions are being received in terms of affect on the other branches and their own credibility. it is critical that they not pay too much attention to it. we would not want a supreme court that is just following whatever is popular and not paying attention to the text and history.

probably they pay a little bit of attention. >> it is good that the justices are instituted by life tenure. -- insulated by life tenure. this gets back to our earlier discussion about judicial nominations. if the justices, no matter which way they go on this case, it is going to fiercely energized some corners of the political world. we are going to feel this affect on future nominations. those are the reasons why i find it hard to take too seriously complaints about the public fighting over confirmations as fiercely as they do. they fight over these things because they are important. the courts ultimately make decisions for which the public only gets a voice after the fact. >> let me answer the question in a slightly different way.

one of the terms in terms of statutory representations, and criminal law, both the gates case and another case raised points about how to broadly construe criminal statutes. the court is going to be construing the statutes in the context of a justice system going through changes. we have a lower crime rate than recently. we had a dropping crime rate over the last 25 years or so. i think eric holder recently announced the size of the federal prison population is dropping this year for the first time since 1980. if you look at some of the key cases, there is kind of an aspect of the facts which are almost comical. perhaps the lead example, a guy

who threw some fish and to the water. it is such an odd context that the compelling government interest is absent from these cases. an interesting question is whether the facts of the case, or of dropping crime rates in general, changes or has some influence on the scope of statutory implication. in the 1980's, when crime was a political question, crime rates were high and politicians were talking about crime a lot. in that window of time, you have a series of cases construing federal criminal laws very broadly, basically saying this is up to the justice department to exercise prosecutorial discretion. the court almost got out of the statutory interpretation game. i wonder if now we are seeing a shift towards narrower statutory

interpretation, whether that is reflected in crime rates or some other shift. it is a really interesting trend to watch. >> other questions? let me ask one that occurred to me as we were talking. the court seems to think -- i don't know if this is right -- that the public is going to accept a unanimous decision more easily than a closely divided one. which is why they worked so hard to make brown versus board of education a unanimous case. does that actually work on the ground? do people care whether hobby lobby was 5-4 and the abortion case was unanimous? do people care about the marriage case is likely to be 5-4 or 6-3? do these differences that the courts seem to care about make a difference on the ground?

>> i think to some it does. those that are following the supreme court's closely are using votes as proxies for what is right or wrong. on the conservative side, you might say, i am going to follow justice scalia and justice thomas. if you are on the liberal side, you might say, i will follow justice sotomayor and justice ginsburg. if they write a dissent, you think of a scalia dissent where he rips the other side, that can affect people. i suspect it really influences those that are sitting around the room -- many of them here. the inside crowd that has a strong sense of, i like this justice. i suspect the public is not really influenced by any of that.

there is a debate out there but they are not reading it. >> i tend to agree. the question is, who are we talking about? court watchers, yes. the general public, no. how the cases interact with their own life is what matters to them. the cases really affect everybody, the tax cases affect everybody. summer others that are interesting but don't affect everyday lives. i do think as carrie pointed out, institutionally, some of these divisions against the administration do matter. you talked about the appointments clause challenge. there was unanimity on a lead issue. i think that does matter in terms of when they come back to the court. >> to just illustrate that it is

not always perceived by people the way it is, take bush v gore, it is 7-2. one part of the decision was 5-4 but another part 7-2. everyone sees it as this huge dividing line. it depends on which part of the decision. at any rate, there are certain really controversial issues. when you have some kind of unanimity like the case with the recent appointments clause, at least it does defuse to a certain extent when you have justice kagan and justice sotomayor voting on the same side. you can still say this is a wrong result, but it makes it a little harder. >> keep in mind, the people have to -- the businesses and the

people that end up being governed by these decisions, a 9-0 decision doesn't say much at all in difficult questions to very minimalist decisions. there is a lot of clarity for people who have to comply with the law. a 5-4 decision might cause a political uproar but at least everybody knows where the court stands on the broader principles. it cuts both ways. >> if we have run out of questions -- have we? then i think we will call it a day. thank you so much. please thank the panelists. [captions copyright national cable satellite corp. 2014] [captioning performed by national captioning institute]

>> today, the head of the cdc and the world health organization speak at university of pittsburgh medical center about the ebola outbreak in west africa. you can see this event live at noon eastern on c-span2. c-span campaign 2014 debate coverage continues thursday night at 9:00. sunday, the debate between his

congressman democrat bruce braley and republican. c-span campaign 2014, more than 100 debates. c-span, "washington journal" is next with your phone calls. at 10:00 a.m., president obama speaks before the human general assembly. live at 3:00 p.m., the president leads the un's critic also meeting -- security council meeting on terrorism. coming up next, look at the role of the national institutes of health and medical research, funding, and involvement in combating outbreaks like ebola. in 30 minutes, we hear from the nih direct her. patricia grady, national institute of nursing research. our guest is dr. griffin rodgers, director of the national institute of diabetes and digestive and kidney

diseases. up, big ten college tour continues. .