two probably or at least for five years and so my guess is that it's just a one term events, and maybe a two-term event that we are not going to enter new period of unanimity at the supreme court. >> i tend to agree with one caveat which is i do think the chief justice avoidance is in major cases has led to more unanimity than we otherwise made scene. justice kennedy has been with him on most of those in most of the court has come with them. if you look at northwest austin in other cases of that kind for the court was on the brink of a major constitutional ruling and step back and everyone close to round the statutory question. i do think that's part of what's going on. >> i'm in broad agreement on a method of statutory interpretation that will cause at least some subversion to make interpretation cases.

for example the fair land -- fair labor standards act case. i believe they were would unit be unanimous in. unanimity. there's agreement, broad agreement on the method of looking statues and you might see more agreement in those areas in the hot-button issues that have more interpretive play. >> it ebbs and flows. other panelists know these cases better than me but in cases involving the voting rights act and affirmative action or campaign finance the court and justice it brought robbers was able to achieve near unanimity only to find issue basically returned to the court a couple of years later when the court fractures deeply over the constitutional role. i think some of the justices were not pleased with how things played out in the long run. the dynamic changes over time.

>> i agree with some of the legal cases does factor in. people get lawsuits by the frustration but when they take extreme positions that causes the unanimity as to some of the cases they were considering. they tend to unanimously be able to return them so sometimes you get a good rash of serious air. plus i think there are certain court cases where it's absolutely ideological managing to come together together on our soul but not a reasoning and that means sometimes you'll see cases where that kind of unanimity can survive and adam pointed out once that's the case who will break apart eventually. >> one thing i forgot to ask about, personnel changes. what's the outlook and 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 in suggesting that she's not going anywhere said words to the effect that who we are going to get better than me? i don't think it was a statement of an egomaniac that it was a statement of a realist. >> certainly in terms of who's likely to step down next it was justice ginsburg in part because there's no sign of anyone else as far as i know having any likelihood of that anytime soon. of course you never know what might happen. in terms of what would happen if justice ginsburg did step down obviously it depends on which party controls the senate and

that's going to be the big question. we will now more about that shortly. it's a political process question that all depends. >> i think it's 100% what happens especially now that we have already seen other judicial nominees and while technically they are still available for supreme court nominations i think it would be very naïve to believe that harry reid would not get the ability there was any pushback at all. the democrats maintain control of the senate. i think the president has a wide-open field and could appoint others. i think he could easily get 51 and i think that is all he will need when he takes the next level step there. >> the chief justice said the chief justice a day or two ago decried the partisanship or around nominations reminded us that scalia's was unanimously confirmed and if breyer and

ginsburg got a handful of votes and now at the last four nominations we seem to be in a different climate what accounts for that? >> i don't think it's alas for nominations. the whole system has really changed from what significant deference the president has 21 in which there is a lot of pushback. honestly from my perspective i think it was clearly started by the democrats making a huge deal out of justice, and this nomination and we are now for better or worse that is how nominations are dealt with. i don't think we can step back from that now because you are not going to get unilaterally disarmed simultaneously. >> although kennedy and breyer and ginsburg didn't change every

single member. >> i think we are now in the world and i don't know that anyone thinks we are still in that. i just want to see if the other panelists think there is hope. >> don't think there's any doubt we will ratchet in this process. i think it can get worse and when you think you can't get any worse, it does. >> an interesting question is what happens when you have the opposite party control of the president. up until now the last few nominations we have had the senate controlled by the same party as the president so everybody is voting on a party line the nominee will sweep by. it won't be pretty but they will sleep by. things get much more complicated if the other party is controlling the senate because then of course everybody goes on party line and they reject the nominee. the president comes back to another nominee and they keep keep having partyline rejections over time.

the president will move more towards the center in terms of the nominee or say okay if you're going to reject my nominee on party lines i'm going to get more ideologically towards my and every time. that's the reset button questions and nobody knows how that's going to play out. >> i was 1968. there was johnson not been able to get any of his nominees through a republican congress. it was messy but we survived. in terms of confirmation it's important to separate two things. we can all be against character assassinations of judicial nominees but to say character assassination is not to say we shouldn't have very strong fierce political and intellectual debate over supreme court nominees. the republicans would have advanced orrin hatch would go

with ginsburg breyer. what we lost in those debates was real thoughtful discussion ahead of time about what the american people want the court to look like and what officials want the court to look like to at least have their say at the beginning of the process. the good lord knows we don't get a say after the process. >> another point also is more social policy has moved over to the court i think you are seeing more invested in making sure that the benches go to people who share their approach to law. i don't think it's an accident. >> we are so divided on the proper outcome of that and did it -- intellectual debate and political debate that really there can't be anything but this kind of harshness and winner

takes all and the loser go homes until the next time they win. i just don't see any end to the process playing out the latest now. >> isn't justice ginsburg will critique of roe v. v. wade that officials in my case the courts stepped in to a early and thought they could sell the political debate once and for all and political debates don't end. bill buckley said there are no internal victories and no internal losses when things continue on and on not enough probably though it should be. >> cigie decided 30 case is hopeless or just really bad. [laughter] >> we will move to your question. who would like to go first? or would you like to follow the paddle? we will give you discretion. there is a microphone for you.

>> cari severino seems to treat the statutory question to the aca questions as cut and dried but the fourth circuit reasoned that references to such exchanges included federal exchanges and therefore the statute construed in toto, supported the irs interpretation and i wonder what you and others might think about the viability of that argument with the nine justices all of whom say it's important on the statute. >> we filed a brief in the king and albert cases on interpretation as well some the plaintext is pretty clear. it's clear what the plaintext is

and the irs interpretation. the question is exactly that whether the exchange created by the state can mean exchange created by the federal government. sure i think you can argue both ways on comment to that position. actually you might not fully get down to that because some of it does determine -- get determined by your purge to discretion and deference. a lot of it may be determined by this earlier procedural point do we have to give deference to the irs interpretation? at if the court decides yeah we have to give deference they might not think it's such a great interpretation but they will have to go to it and that if the state decides they don't want to again i think there's a lot of room for plaintext where it doesn't say that. it's an open question.

i think the text is clear enou enough. it's easily the same thing with unambiguous text. >> any other thoughts on that? >> it's so quiet in here. >> yes, lee. >> hi. i guess it doesn't seem quite as clear to me that the court has settled on approach to the statute. i think it's clear in ordinary cases that that's so but for example and bond i think there's a pretty good argument that there was no statutory interpretation. they never got around to

figuring out what the statute was exhibited in reach this case. if it had reached this case they would have had to figure out the constitutional question and we don't want to do that. so i guess i would worry if i were you now thinking about what's going to happen with the statutory approach, the textual approaches the statute holds up. it is under real pressure in my wonder about that as a possible way of understanding the situation. >> i agree. think bond tells you more about this court's approach to the constitutional interpretation than the statutory interpretation. everything was driven by the effort to avoid the question. i think that is the hallmark and by the u. of agree with it or disagree with it is a pretty

consistent approach. we saw it in the affordable care act and we saw it in austin. you are worried that it raises the issue of constitutional pressure but at the same time i filed the brief supporting the challenge. i do think the administration's case is fairly complicated because sometimes they are arguing it's an intentional gap of the statute and other times they are saying -- macrocosm both so i think they are trying to figure out which argument is going to be received better but will ultimately have to choose which one they like better. >> the issue will come up again because looking at the statute, there is a very strong statement from congress that the united states policy on jerusalem is this. the remedy of the litigants that people who want passports in

that case what they're asking for a smaller. they're just asking for a passport to israel but i followed this case quite a bit. i think it does show a tough challenge between congress and the person in their powers but at the end of the day the family just wants a passport and at the end of the day the president can say we are issuing this passport that u.s. policy remains unchanged and at the end of the day the courts can construe the statute narrowly to sidestep the question of u.s. policy and get to the more ministerial question about what something says on a passport. maybe there's a policy in another case where the court will go for minimalist -- is hard for me to see what the real substantial infringement of the president's recognition of powers. nobody is actually saying that the u.s. policy on the statute says that but in that case i don't think anybody saying u.s. policy is different.

it's just a passport which is important in this family. >> i guess that's severing the statement about what the u.s. policy would be that is reflected in its ability to have something in a the passport. the president a judgment of this administration and previous administration actually would have a damaging effect on the president's ability to control foreign policy and his recognition of the sovereignty or not to recognize in a sovereignty so you have to both reject the president's judgment and sever the statutory statement about what this means u.s. policy is from a notation on a passport. i think those are big things to do. if the court is willing to say where it does -- going to discount the president judgments and we are going to ignore what the statutory language says and means i think that's a dramatic step for a court to take. >> in terms of the judgment

issue is congress's judgment of what something should stay -- saying the statute. earlier referred to align that the president's -- he's trying back from when marshall was still in congress and if you look back on where the line comes from it was taken i think what marshall was saying is once policy is defined by power suppressants is sold or getting carried out. maybe he's the instrument of foreign-policy but somebody has to decide what the instrument is going to play. baby the senate and congress should have some say otherwise we will defer to the president's judgment of what will and will not affect policy. >> be anything that is adjusting here is its holding that long-standing institutional judgment to acquiesce by congress over the long-term like

unilateral recognition. the president should get some deference. i think it's an interesting and difficult case but i think there are powerful arguments that the president has and the judgment could be very damaging. >> adam does make the intuitive point that seems kind of trivial. who's going to get upset a border guard at the turkish border? >> it will be read in a particular way in the foreign relations setting and the question is do you just give up the back of your hand at risk having -- some international relations are not? i think it's a difficult question. >> there's another thing at play here. the presentation a signing statement saying i'm not going to treat this as is mandatory

and i'm going to treat us -- back in 2000 present upon the skimming his famous interview where we quote now we are not going to use signing statements to nullify or undermine congressional construction enacted into law. understand you as senator ben and he's the president now and he is change but at this point somebody needs to remind everybody about where we have been on these issues. >> it sounds like adam in this particular case you think the constitutional avoidance move might be right. >> at the end of the day i'm just very curious why we can avoid the bigger policy issue and decided narrowly on the basis of what's written in a passport. >> yes sir. >> in terms of temperature of social events where rangers are

collecting people what he thinks the temperature will be for these cases? will there be a trend like football players have pink day and what do you think will be the temperature for this term? >> keep the microphone because i'm not sure we fully have a question yet. >> my question is how will be issues affect the citizenship? will there be more violence in writing in the street? >> i think that facebook case will probably not result in writing or in a significant backlash. let me ask the question in the most salient way. a assuming the court establishes the right to same-sex marriage which i think is more likely than not and more likely than not this coming june how do you think the courts will react to that? >> what makes the question difficult i think if there is a sense of attitudes are changing so quickly.

i think we could answer that 10 years ago or five years ago and maybe even last year but there is at least a sense that statutes are changing quickly enough that it's hard to venture a prediction. it may make a difference whether it comes down a year from now or two years from now. it's just very hard to know. >> i think particularly it may have the effect of occupying the lines that they have now are deepening them in some cases. the feeling of these are not the result i would have come to. it will affect how it will go. could work both ways. some may jump on the bandwagon and say it's the direction that everyone is going or could backlash. i don't think the court is stepping out of line out that it's an unconstitutional question that i think it should be decided democratically and there could be pushed back.

i think it would be different if the court decided this year versus next year. who knows? >> how much do you think the court should care about the reputation of its authority and how much should he care about backlash? >> a little bit? >> i think it's human nature for them to care about how their decisions are being received in terms of the effects on the other branches and their own credibility. of course it's critical that they and not pay too much attention. he would want a supreme court that is just following what is various popular or not it not paying attention to the history and the traditional legal sources. probably they pay a little bit of attention. >> this gets back to our earlier discussion about judicial nominations and confirmations.

if the justices now matter which way they go on this case no matter which way they go it will energize some quarters of the political world. we will feel the effect of future judicial nominations so no matter which way the court is going to be controversial. that's the reason why i find it hard to take too seriously the complaints about should the public be fighting over these things. the court ultimately makes the difficult decision for which the public only gets a voice after-the-fact. >> let me answer the question in a slightly different way. one of the issues in terms of how the court will affect statutory interpretation and a criminal law context in particular the u. of this case raises issues about criminal statute. the court is going to be referring to the statute in the context of criminal justice with

interesting changes. we have lower crime rates than we have had recently. we have had a drop in crime rate over the last 25 years or so. i think eric holder, attorney general holder recently announced that they federal federal -- prison population is dropping for the first time since 1980. if you look at the fact that some of these cases the yates case in the facebook threat case there's an aspect of facts. the fish gate case fish fish gate case is probably lead example. sarbanes-oxley, it's such an odd context. the compelling government interest and the interesting question is whether it's the facts of the cases or the dropping crime rates in general

changes or have some influence on the statutory interpretation. the contracting data point would be in the 1980s when it was a political pressing question. crime rates were high and we had politicians talking about crime a lot and in that window of time we had at the supreme court cases especially in a white-collar context describing federal criminal is very broadly. basically it's up to the justice department exercise statutory of discretion and the court almost got out in a statutory interpretation game pursuing these statutes very broadly. i wondered now we are seeing a shift towards narrower statutory interpretation whether that's reflecting crime rates or some other shift in the laws. >> other questions? let me ask one that occurred to me as we were talking.

the court seems to think in i don't know if this is right that the public is going to accept the unanimous decision more easily than a closely divided one which is why earl warren worked so hard to make brown versus education a unanimous case. does that actually work on the ground? do you people actually care whether hobby lobby was 5-4 in the abortion protest case was unanimous? do you people care that the marriage case is likely to be 5-4 in a not man must? the court -- do these differences that the court seems to care about make a difference on the ground? >> i think to some it does because those that follow the supreme court closely or using proxies for what's right and what's wrong. for example if you are are in a conservative site you might say

all right i'm going to follow justice scalia and justice thomas and whatever they do is where i would come out of rerun the liberal side you might follow justice of the lie are follow justice out of ir or justice ginsburg. if they are important something you'll probably say well it must not be that problematic or if you think of a scalia's dissent where he ripped the other side that's something that can influence people. i suspect it really influences the 35 legal authority sitting around around. >> many of them are here. >> that's the inside crowd that has a strong sense of i like the footnote in that opinion. i suspect the public is not really influenced by any of that. there is a debate out there but they are not -. >> i think the question is who are we talking about? i think how the case can

interact in their own life is what matters to them. you often have cases that are less talked about here. some of the other cases were very interesting but don't affect people's everyday lives. i think is additionally some of these nine have these 9-0 decisions i think to matter. you talk about the appointments clause challenge and the fact that there was unanimity on the lead issue i think it does matter in terms of when i come back to the court to position themselves. >> i think to illustrate its not all perceived by people the latest they say bush v. gore was a controversial case and in fact the reset was 7-2. people have the perception and there is one decision that is 5-4 and another was 7-2 and peoples see it is a large

dividing line. there's two parts to the decision. at any rate controversial decisions are going to have controversial opinions. when you have something like the nlrb case at least it does diffuse to a certain extent when you have for example justice kagan and justice amaya are. it makes it hard to make the ideological argument. you can still say it's the wrong result but it makes it a little harder. >> keep in mind people who have the business and the people ended up governed by these decisions and 9-0 decision doesn't say much at all and sidesteps the question the very minimalist position. there is a lot of clarity for people have to comply with the

law wears a 5-4 decision might cause an uproar but at least everyone knows where the court stands on these broader principles but the very narrow decision so it cuts both ways. >> if we have run out of questions, halfway? i think we will call it a day. thank you so much and we thank the panelists. [applause] [inaudible conversations] >> next, a debate between the candidates running for the u.s. senate seat in iowa. after that, "q&a," with sally quinn. at 7:00 a.m., your calls

and comments on "washington journal." >> today, the washington institute will host a day-long symposium on the middle east that focuses on u.s. relations and challenges in the region. watch it live at 9:00 a.m. eastern on c-span 2. communicators,he federal trade commission or on privacy andn data security. >> big data is the tool. there are many benefits that can come from big data. insight in certain areas, many areas, but some that are top of mind for me our health care and other kinds of research. providing new insight, i think, is one of our more difficult to solve problems that we face. are there risks as well? i think that is true. of can take pieces

information and assemble them into a profile that may give insights into a consumer. the question for me is, you have all these benefits, you have some risks. what do you do then? >> tonight at 8:00 eastern on c-span 2. >> c-span's campaign 2014 coverage continues with the debate between the iowa senate candidates. ernst.raley and joni they are seeking the seat held by tom harkin who is retiring in january. this is about an hour. a kcci newsatching special. >> commitment 2014.

the united states senate debate. presented by the des moines register. >> good evening, everyone. welcome to a special event. tonight, the first debate between the two candidates for the u.s. senate it. democrat bruce braley and republican joni k. ernst. they are vying for the seat of tom harkin. they have woken up to a whole that shows joni k. ernst leading with 44%. we will dig deeper into those poll numbers. a little bit of housekeeping. our format will change. it includes a chance for you to tweak us your questions to ask the candidates. if you would use #iadebate.

each candidate will get 90 seconds. our coin toss determined that bruce braley will go first. >> thank you for moderating tonight. i want to thank the des moines register and kcci-tv. i want to thank the viewing audience here. thank you, senators. i am bruce braley. i grew up in a working-class home in a small farm town. my mom is a schoolteacher. my dad ran a grain elevator before dying. i've worked for the des moines register. i got my first job in the third grade grade i worked a lot of different jobs to pay my way through law school. i met my wife and we have been together for 30 years. i am running for the senate because i am going to stand up

iowans, which is what i've been doing 30 years. i will work with anyone who has a good idea that is good for iowa. i am a bridge builder. this election is about a clear choice about moving forward or following a radical tea party agenda. on issue after issue, senator joni k. ernst has stood with a extreme agenda. opposing the farm bill and the renewable deal standard. i'm here tonight to listen, learn, to share my views, and ask for your vote. thank you. >> thank you. >> i would like to thank our hosts. i am joni k. ernst. i am a mother. i am a soldier. i'm someone who cares deeply.