after democrats defected last week despite a burst of late minute lobbying by mr. obama p are the democrats are skeptical of how t >> see the rest of this discussion online at c-span.org. life to the u.s. house. -- live to the u.s. house. the speaker pro tempore: the house will be in order. the chair lays before the house a communication from the speaker. the clerk: the speaker's room washington, d.c., june 15, 2015. i hereby appoint the honorable luke messer to act as speaker pro tempore on this day. signed, john a. boehner, speaker of the house of representatives. the speaker pro tempore: pursuant to the order of the

house of january 6, 2015, the chair will now recognize members from lists submitted by the majority and minority leaders for morning hour debate. the chair will alternate recognition between the parties with each party limited to one hour and each member other than the majority and minority leaders and the minority whip limited to five minutes, but in no event shall debate connue beyond 1:50 p.m. the chair recognizes the gentleman from oregon, mr. blumenauer for five minutes. mr. blumenauer: thank you mr. speaker. the strange collide scope of this -- can lied scope of this congressional session began with a proposed shutdown of homeland security to the bipartisan action to fix the vecksing s.r. medicare funding formula. the so-called doc fix to prevent dramatic cuts to

providers. yes, it is still hard to overcome deep divisions, philosophic differences and some real serious politics. the heated rhetoric and convoluted votes on the trade packages is a recent example. wouldn't it be great if we could take a step back and find ways to unite us to solve a major problem? well we've got a major problem that is staring us in the face right now. we're in the midst of the 33rd short-term transportation funding extension. that is the result of our inability to pay for 2015 infrastructure with 1993 dollars. that is the result of our inability to raise the gas tax since 1993. but the demands for transportatn solutions grow

and the harm inflicted on families occurs every day. it costs them over $300 a year just in damage to their cars from road maintenance that has fallen apart that we are paying $125 billion a year penalty for congestion. americans, make no mistake are paying the price for this dysfunction and the people who are partners athe state and local level and in the private sector are having great difficulty doing their part without the certainty of the federal partnership that has been the bedrock, that has been the foundation of national transportation policy since president eisenhower. now there's a little hint of sunshine here because this week on wednesday we will be having the first hearing o transportation finance since my

republican friends took control of congress 56 months ago. what if we took advantage of that discussion to expand the scope of the daylight? what if we were able to have at the same witness table the president of the u.s. chamber of commerce, tom donahue, and the president of the afl-cio, rich trumka, who don't much agree on anything but they are united in their firm belief that raising the gas tax, getting the transportation funding to rebuild and renew america is absolutely essential? we could be joined by people who understand that thousands of -- hundreds of thousands of family wage jobs would be possible if we met our transportation obligations. we could have representatives from state and local

government, transit agencies, the environmental community, safety advocates all joined at the same table. the eloquence of governor bill graves who's currently president of the american trucking association, but he was republican governor of kansas who raised the gas tax not once but twice. he could be joined by the american automobile association, which has come out strongly in favor of a gas tax to be able to meet the needs of the motoring public. why wouldn't we want those people there? we could invite state legislators from six very red republican states -- idaho, utah georgia south dakota, nebraska and iowa -- that all raised the gas tax this year. they didn't just talk about it. they acted. six red states raising the gas

tax already in 2015. i'm optimistic that we can capitalize on these comblimmers of life we're seeing -- glimmers of life we're seeing, that if we could just listen to people at the state and local level, organized labor, people who build maintain and use our transportation system they could be part of that deliberating process and i'm confident that we in congress could develop a united front on an issue that has been controversial in the past but is no longer. when people step up, when they accept responsibility and work cooperatively. we can do what was done in idaho, georgia, utah, ohio, south dakota, nebraska. congress can do that. and after all the acura moany and part -- acramony and partisan talk, wouldn't this be the right time to do so?

the speaker pro tempore: the gentleman's time has expired. the chair recognizes the gentleman from oklahoma, mr. russell for five minutes. mr. russell: thank you, mr. speaker. congress has a chance this week to turn the president's pivot to asia into a pivot to america. the question is, will we listen to the american people or will we double down on a watered down policy that has divided both the democratic and republican sides of the aisle? to stop the t.p.a. we must hold firm. republicans and democrats all want trade barriers to be removed but we are at a crossroads because both parties have voiced a lack of trust in the president's ability to be able to negotiate what is best for america. that is why we are still fighting to stop the trade promotion authority better known as fast track. fast track will not be the panacea of all ills.

in fact, if granted we could see president obama move swiftly on the trans-pacific partnership that will likely not deliver the goods and will have harmful secondary affects in multiple areas. a professor at the university of texas-el paso said, quote, i think the consequences could be very dire. we saw under nafta so many jobs that went from the united states and went from mexico. then we saw as well tens of thousands of low-income mexican families being put out of work and losing their land and we saw how that drove migration to the united states. end quote. the architects of the t.p.a. in both congress and the white house claim that fast track with it they can lower barriers on u.s. exports among the other 11 t.p.p. nations in the negotiation thus increasing jobs and wages. now to the facts. we already have high-standard

free frayed agreements with seven of those 11 other nations in the proposed trans-pacific partnership. we are writing the rules in the pacific. let's write them some more with good bilateral agreements. if you don't believe me, then how about simon johnson, a former chief economist of the international monetary fund and a professor at m.i.t. sloan. here's what he said about the myth of needing the t.p.a. to lower tariffs among the members of the trans-pacific partnership. quote almost all tariffs on trade among canada, mexico and the united states are long gone. under the australian-singapore free trade agreements, almost all tariffs on u.s. goods have been eliminated. goods have entered chile without tariffs since january 1 this year and most tariffs imposed by peru have already been phased out. the t.p.p. will amount to a free trade agreement with brunai, with a population less than omaha, nebraska, and new

zealand with a population less than louisiana, encouraging exports to these countries are surely desirable but the economic impact on the united states is unlikely to be more than a rounding error. that leaves three larger countries where the issues are more complex -- japan malaysia and vietnam. and t.p.p. will also confer special status on foreign investors, allowing them to sue for financial judgments against host country regulations. creating a quasi--legal process outside the regular court system just for foreigners can go long in many ways end quote. i would add from my own reading of the t.p.p. without divulging the details concerns about private rights and disputes the transnational panel empowered with a living agreement even after the accord is signed and possible exceptions granted to brunai whose legal system is not to the same standard as other nations. so one says what solutions do

you have. well, here are a couple. first, listen to the american people. if the majority of americans completely across the political spectrum have voiced concerns against t.p.a., then our actions this week will truly reflect if we are being representative of that voice. second, the president must demonstrate he can lead on foreign policy. he has yet to do it. granting fast track to negotiate with 40% of the world's economy should be based on how well he has handled foreign policy. have we forgotten the handling of syria, isis iraq, crimea ukraine and iran? i can go on but the question is, why are we? the president must show us some deeds, not words. he should start by negotiating a bilateral agreement with our ally japan. intently focus there. bring that to us and we will likely approve it. third, negotiate an interim agreement with china. we still have much to do with

raising the standards bar on chinese trade, but china lacks lawyers to fight these problems. well, do we know how to make plenty of those? negotiate a law school program all across our land's rich institutions to create chinese attorneys to help fight these issues. as to goods, china is seeking oil natural gas coal timber, aggregate, beef and pork. we have an abundance of these. how about a trade agreement on these narrow products that will immediately benefit us all? it's not impossible. we have the resources. we have the technology. what we need are the guts to do it. a rekindling of the american spirit and the leadership to get it done. it starts by putting the brakes on fast track. we need the right track instead. i yield back my time. the speaker pro tempore: the gentleman's time has expired. the chair recognizes the gentleman from california mr. mcnerney, for five minutes. mr. mcnerney: thank you mr. speaker. this morning i'm going to talk

about campaign finance reform. first of all, though, i want to say that the united states of america is the greatest country in the world. you can see by our economic dominance, by our cultural dominance and by our military power, but we face some very big challenges and unless we're able to tackle those challenges, our dominance may be in peril. some of those challenges are climate change, global competitiveness. we need to make sure our manufacturing is up to par and can compete with any country on the earth. we have a vanishing middle class which is a very devastating to our country, and we have a crumbling infrastructure. we also need to work on our educational system, but i can tell you it's very difficult to attack any of these problems in a serious way with the current system of campaign financing. so let me go over some of the problems with campaign financing in our current system. first of all you can see on the list here campaigning

financing makes an elected official less effective because the amount of time we must spend raising money for the next election. that leaves less time to work on the issues that need to move our country forward. the campaign money right now fuels negative campaign ads that turns off voters and suppresses vote turnout. campaign financing causes wasteful government spending on programs that big donors wrant to see out there. -- want to see out there. and the threat of negative campaign ads -- and this is very corrosive -- causes elected officials from taking stands and leadership on important issues. and this reduces the effectiveness of our government institutions. nowadays, even our judicial races are becoming expenses and tainted by the influence of money. next, people have become cynical about the government in

this illusion about the united states of america because in part because of negative advertising. next the super p.a.c.'s and dark money coming into campaigns are no longer controlled by the candidate on the ballot. and lastly -- i think this is very important -- excessive election spending drowns out free speech. if you look at campaign ads what's happening is that the big money comes in, buys all the campaign ad time on tv floods our boxes, our mailboxes with literature and people are only going to listen to so much campaign rhetoric. they turn it off so the people with the most money are the ones that are listened to and the folks without much money, their ideas are never heard. they don't get far. i think this is a very critical issue. we see the problems that we have with the current system. .

first of all, the supreme court of the united states of america has shown a very strong bias in the last decade or so toward putting more money in politics. that's right. the supreme court has made it so more money is coming in to politics and election campaigns every single year. citizens united decision, but the supreme court ruled that corporations have the same free rights, same free speech rights as people, allowing corporations to use their treasuries to finance campaigns. i can't think of anything that would be more corrosive to campaigns than to see a plethora of corporate and union money coming in with no controls and controlling the message. this year, in fact just this year the republicans in the house and senate passed legislation that increases the

total that an individual american citizen can contribute to political parties almost by a factor of 10 going from $35,000 to $300,000. an individual can donate $300,000 to a political campaign. but there is significant public support for taking money out of politics. according to june, 1950 "new york times" cbs poll -- 19 qush-ation money has too much influence in politics. and 85% of those surveyed said that campaign financing system should be either completely rebuilt or fundamentally changed. growing money in politics represents a threat to our cherished democratic institutions that were built by our founding fathers. this is not what the american

people want for our democracy. it's critical to inform the american public about what's happening and what can be done about the problem. there are reform options of two kinds. the first kind is legislative reform actions. there's three or four types of that. the first and most important i think is -- my time is about to expire. the first and most important is the disclosure of transparency and then there's constitutional amendments. constitutional amendments are very hard to pass. but they are not subject to be overturned by the supreme court. i have a constitutional proposed amendment h.j.res. 31 which will do away with p.a.c.s. and super-p.a.c.s. i hope they'll decide what they want to see because the system is in desperate need of change. i yield. the speaker pro tempore: the chair recognizes the gentleman

from texas, mr. gohmert, for five minutes. mr. gohmert: mr. speaker p. i appreciate it so much the comments of my friend mr. russell neighbor from adjoining state. he's right. the american people have made clear they did not want the t.p.a. passed. they certainly don't want the t.a.a. passed. how ironic that we are told that t.p.a. passage will create massive number of jobs, and yet people that have looked at it on the democratic side said this is going to cost a lot of jobs so we got to have more unemployment benefits, more government help for people that are going to lose their job, which is what the t.a.a. basically does. or we can't vote for the t.p.a.

how ironic. and also how ironic that president obama seems to have worked harder on this bill than he has about anything since obamacare. he's come to the hill. came to the baseball game. he's really pushing people to join him. it's rather ironic because it's just hard to believe that he would be working this hard to limit his own powers. he's never done that before. he's never worked to limit his own powers. it also strikes me as a bit interesting that some of the same people that push so hard to pass tarp, the wall street bailout, are also pushing for this. there was a former fdic chairman named isaacs that came to the hill with the support of many economists said please don't get into this socialist activity where you partner, government partners with private business. don't do that. certainly not for $700 billion. there is no justification. look, we probably got more than

that, clearly have more than that that american individuals, american businesses have overseas and banks they'll never bring into the united states. they already paid a massive amount of tax on it overseas. a far better free market approach would be just pass a bill that says you want to shore up the -- any aspect or any entity like goldman sax -- goldman sachs chrysler g.m. you could have saved any of them if you just said bring that money in from overseas no tax, and we could have made it very attractive to do that, then we wouldn't have to give the government $700 billion with basically no limits on how the secretary of treasury could spend his money. he couldn't prop up a central bank of a foreign government, but i read the bill. i couldn't believe we were going to give that power to one

person. we have not done that since the constitution passed. it also should be noted, i think, that if we had not passed that $700 billion wall street bailout, that give away, then president obama would never have gotten $900 billion. he would never have been able to push so much more for bigger government and gotten it. we would have been able to stand stronger against that. which could have prevented obamacare from even coming up and passing. it had terribly damaging effect. some of the same people that wanted tarp are now wanting t.p.a. t.a.a. it's a bad idea. i want to just finish, mr. speaker, by noting that we have the supreme court taking up an issue, supposedly going to come out with an opinion before the end of the month ruling on a case involving same-sex marriage. the constitution nor the bill of rights neither one provides any power for the federal government to get involved in the issue of

marriage. that's always been a state issue. it should be under the 10th amendment. yet we have the supreme court potentially going to weigh in and take over that power. we also know that the law is very clear 28 u.s. code section 455, says any justice, judge, or magistrate judge of the united states shall disqualify him in any proceedings in which his impartiality might reasonably be questioned. two justices have made clear how they feel. they participated in same-sex marriage. if they do not disqualify themselves and they rule on this case, they have shown a total contempt for the law. that should lead to impeachment. but america would have to rise up to make that known. but we will see here in the 800th year anniversary of the maga carter, when it was made --

magna charta, when it was made clear not even the king was above law. if the supreme court says 800 years later, we are the supreme court we are above law, there is nothing you can do about it, i hope and pray they are not pair gantt to bring done this constitutional republic. we'll see. i yield back. the speaker pro tempore: the gentleman's time has expired. pursuant to clause 12-a of rule 1, the chair declares the house in recess until 2:00 p.m. today. again, as you just heard, the house will be back at 2:00 and then at 4:00 eastern. there are seven suspension bills on the agenda, including one urging iran to release through u.s. citizens being held in that country. votes today after 6:30, and possible later this week a revote on trade adjustment assistance or t.a.a. that was defeated last week. that could corm tomorrow. also possibly a resolution calling on the president to withdrawal u.s. troops from iraq.

live coverage of the house when members return here on c-span and that will be at 2:00 p.m. eastern. coming up later this afternoon former florida governor jeb bush is expected to make an official announcement of his candidacy of the 2016 republican party nomination to be president. you'll be able to watch that live at 3:00 p.m. eastern on our companion network c-span3. news from the supreme court today. "the new york times" reporting that high court refused to hear an appeal from north carolina officials seeking to revive a state law that had required doctors to perform ultrasounds displaying the resulting sonograms and then describing the fetuses to women seeking abortions. they gave no reasons. justice scalia noted a dissent without saying why. it left in place an appeals court ruling that it was a violation of the first amendment. that story in today's "new york times." and last week supreme court attorneys and scholars

discussed whether the court needs to be reformed. speakers included university of california irvine law school dean edwin and constitutional chief counsel elizabeth. it's held by the american constitution society. this took place during their national convention here in washington last week. >> i guess everybody is here from the breakouts. so welcome to the program. plenar east afternoon which we hope to end the afternoon with a bang. and discuss whether the supreme court is a failure. and if so what can be done about it. [laughter] this program is being recorded by c-span so you may find it at any and hom hour of the day or night for the next five years. before i introduce our distinguished panelists i have to go through my marching

orders here. one of which is introduce myself. i'm linda greenhouse, i speevep teach at yale law school. i'm a member of the a.c.s. board and i'm proud to be a member of the a.c.s. board because i view our mission as hoping to grow and sustain the next generation of progressive lawyers. and i have been delighted to see how many students there are and so that's why we're all here. but we have a diverse panel. so not everybody is necessarily on the same page and that's obviously a good thing. cell phones, please mention that cell phones must be turned off. ok. done that. ok. we'll have about 20, 25 minutes of q&a at the end. that is to say starting in about 20 minutes past 5:00 and there will be cards. you can use the cards will be

collected. if audience members would like to tweet about the session or their national convention experience, this is the twitter handle. the official hashtag is acs 15. and this session is approved for c.l.e. credits. for more information you should consult the blue handout in your convention bag or the staff. ok. so we're going to take i hope a kind of outside the box response to our topic of whether the supreme court is a failure and by that question we don't mean -- we mean structurely. we mean -- we don't necessarily mean the problem with the supreme court is one justice decides every case. we can all agree that maybe that's problematic but that's life. there are many things we can talk about in terms of the

supreme court's institutional functioning, the nomination process, the confirmation process. various other aspects of the way the justices collectively or individually approached their work. what i've done -- whether than ask people to give us a little set piece to talk, i'm going to throw out the question to our very distinguished panelists who i almost forgot to introduce but i'll introduce. the question of -- just to name one thing that they would -- that they think indicates whether or not the court is a failure and what they'd like to do about that and we'll ask a discussion about that and move on to the next person. so in the order in which they're going to speak, which is not the order in which they're sitting, so on the far right is larry kramer who is the former dean of stanford law

school and he now runs the hulett foundation in the -- hew lit foundation in the bay area. to my left is nelson from george mason law school. at the far left is irwin the founding dean of the law school at u crumbings-irvine and to his right is elizabeth, who is the chief counsel of the constitution accountability center. and justin driver on my immediate right from the university of chicago law school. and so these are all very distinguished constitutional scholars. and we're very lucky to have him here. so i'm going to start with larry. is the supreme court a failure and what way, if so, and what would you like to do about that? larry: i have a talk called "why you should hate the

supreme court," although it's too long for this. whether the supreme court is a failure is how you talks about success. they have way, way, way too much power and the amount of power that's been given is insane. linda: in fact, you wrote a whole book about that. larry: i did. [no audio] since that's probably not interesting here for a variety of reasons an easy way to see this, to the extent, there should be some balance for accountability on each side. there are independents provisions built into the constitution but we pile onto that a million more as though any attempt to make them sort of pay heed to anything that happens outside the court is bad. and so i'll talk about two of those just very quickly. so one is the lack of transparency about the way the court operates is shocking and extreme and ridiculous. and that cuts across the board whether you're talking about

you know, their ability to take high paid junkets without having to disclose them to anybody. the ability to decide themselves on discipline and when they will or will not recuse themselves is across the board. just the lack of television coverage in the court which of course they opposed precisely because they really don't want too many people to see exactly what goes on and on and on. so that would be one space. just a -- you can have a lot more transparency in what the courts does which i think would change public perception of the court in any useful way without undermining plausible motions of judicial independence. the other is if they're going to have this power, who we put on the court i hope there's no justices nearby. this would be a little insulting. so be it. i'll preface it by saying i wouldn't put myself on the court either. but if you're going to give people this kind of power, the fact of the matter is all the

important cases that court decides, the ones we care about are ones that literally by definition the law runs out giving you an answer. so the question is what's going to take you that last little -- once you've done the legal analysis, what's going to take you that last little bit? and we used to actually put people on the court who had done things in life, had real experience and real accomplishments who had been senators or governors or cabinet officials who had responsibility for making decisions in the political realm and seeing what the consequences were. and with that comes the kind of experience and wisdom. now you take people like that you remove them from part of the partisan context and they can bring that to bear when making decisions when you have to make that last little bit. as we made the supreme court more important -- because this started around 1970 -- we stripped away the ability of people on the court who did any of that. now to be on the court you had to basically been nothing other than a technical legal expert

and have not done anything beyond that. and of course the problem is then when the law runs out exactly what is it these people bring to bear also runs out and they have nothing to bear and so they tend to fall back on ideology and is up position and that's what you see. and i think the last justice, from my perspective, who had kind of experience to bring to bear would have been justice o'connor and you saw that in the way she decided cases. very distinctly, whether you agreed with them or not, and so we need that kind of wisdom so i would change -- and i don't know how you do this because it's really a cultural thing. but what we don't need on the court are people who have only ever been technical lawyers. then in particular the ones we get now who have been technical lawyers or never said or done anything that might have caused controversy and instead have people who have real experience in the world that the court is going to affect through its decisions. linda: when our metric for that

is something i remember walter dellinger said back in the day when he was advising president clinton on potential nominations is to ask whether that potential nominee if they never made it to the court, would it get into "the new york times" and what would it say? and i guess by that measure, ruth ginsberg would qualify. i'm not sure of anybody else. but back to your points, larry you make two kinds of points. ones on the transparency and sort of with an undertone of ethics and then on the kind of work product and who do we put on the court so i think those are two quite different points and maybe we can discuss them separately. and also on the transparency point i think you make a couple different points.

television is an old -- an old issue. one can debate and it's been debated for many years so maybe we can put that aside for a minute. you mention judicial ethics and junkets and things. is that a problem? i mean they do disclose their finances like every other federal judge. they do hold themselves bound by the code of judicial ethics. as i understand it, the reason as a kind of formal matter, the code doesn't apply to the justices even though they abide by it is because who would judge the justices, right? but do others think these are -- that these are problems that indicate that court is falling short? let's just look at the ethical part of the transparency and then we'll peel the others. larry: just to be clear about

the point. it's not so much that you point to any particular thing they would do though that thing would make a difference. it's more about the overall culture of the court and the sense we can do what we want or there is a public that will watch what we do. so when i take junket after junket paid by whatever sponsors there are unions, corporations, pick your side, do i think about that? do i think whether i do that or not, does that affect how i decide? i think zero it does. it's a pervasive culture how the court operates and not a narrow sense of what it might change. linda: so is there a sort of corrupt culture at the court? larry: it's not corruption. it's the sense of independence. we don't have to worry about our care. it's all interconnected. if you're not going to take away judicial supremacy, which i would do what can you do nonetheless to give them some sense they have to be accountability to the world outside? that's what transparency rules are really about.

>> i don't think it's a corrupt culture. the great thing about our federal judiciary, there is every allegation of corruption. i think, though, what larry says is right, the ethical rules that apply to other federal judges should be applied to supreme court justices. erwin: it's wrong for a justice to recuse himself or herself. i don't think they should be a judge for himself or herself. and the perception needs to change rather than the individual justice. linda: who could make the decision? erwin: a panel. i don't think it being submitted to other justices because i worry they'll defer to each other. but it troubles me and we can identify cases where justices are participating even though there are serious questions and we all know it's just left to that justice to decide. i think related to that

justices are often reluctant to recuse themselves because of fear it would lead the court with a 4-4 split. i see no reason why we couldn't allow with three retiring justices for them to come back and sit in when one of the justices are recused which would a justice would recuse themselves in the close cases and in the close cases it's better they recuse them self. linda: so with your idea of an outside body, how does that work? every granted case would have to be vetted? what? erwin: no. when there is a motion to recuse a justice it should be submitted to someone other than that justice. who that body is i'm less interested in. i'd even settle it had to be going to other justices of the court to decide. but i don't like the idea that a person is a judge of himself or herself. and we have had instances where there was serious motions to recuse and then the justices, no i think i can be fair. i'm going to stay here.

i think of this, for example, when the army spying case was decided by the supreme court 1970's laird vs. tatum and justice rehnquist recused himself and he then he said i think i can be fair. justice scalia went hunting with the vice president and then participated in a case where the vice president was involved. justice scalia wrote an opinion saying i can be fair. i can give other examples. i think it's much better when there's questions whether a justice should be accused to be submitted to someone other than that justice. >> i think it's possible to put larry's comments sort of side by side and think about the way in which the justices are ue big twuss figures at law schools and on screep and sort of one place where we don't see them as -- in their oral argument capacity. justin: and i do find that distressing and sort of difficult to explain.

it seems like justices before they join the court are often attracted to the idea of televising the proceedings in the courts. as you say linda, there is an argument we need cameras in the courtroom but why hasn't it happened? it seems like if the justices are going to go around and give talks, then they should be, you know, seen in their capacity. i don't think that it's because people would be embarrassed by the proceedings at the court. i think that justices, you know ask good questions. it's an alert bench. so i don't think they have anything to sort of fear by allowing cameras in the courtroom. if the argument is about that, you know justices or the lawyers are going to play to the galy, i think that already happens. i wouldn't introduce a new dynamic. i think it would be wise for the justices to let cameras in the courtroom. i don't think there is a serious argument against it. linda: can anybody make an

argument against it? elizabeth: their argument would be taken out of context or something like that. we already have the audio of their comments. you know, if that doesn't seem to happen that much. there's perhaps a middle ground between the arguments against having cameras in the court is at least to have live audio of the arguments. you know, i think that would help especially we see if some cases very high profile cases of intent public cases. linda: and the marriage cases. elizabeth: they release them later that day. as members of the bar know me pipe in audio in the lawyers' lounge if there's overflow for the supreme court lawyers bar section. it seems technologically very easy for them to do that. you know, i think that would be a very good middle ground for the court to adopt if they want to make themselves more transparent. that's only to the good if the american people can be more engaged and more knowledgeable what the court is doing. linda: in a way i think the

current system is actually more problematic in that from time to time the court will acknowledge that there's a major case and they'll put out the same day audio which puts the court in a very odd position of identifying the important cases. i mean, let's assume that every case they grant is important. >> it's the difference between hearing the audio immediately after the argument with c-span putting still photographs of the justices and lawyers there. er win: and watching it live two hours earlier. there's no distinction there. elizabeth: or putting to the john oliver dog re-enactment. like is that better, i don't know? the dogs are cute. >> i have a little different view on this. larry said that one of the problems with the justices is they think they can do anything they want. and i think to the extent that that's true, it's a much worse forming of corruption than any of the things we've been discussing here about recusals and televising the proceedings.

linda: yes, and do you agree? nelson: do i agree? linda: do you agree that there is a problem they can do anything they want? nelson: yes. linda: ok. erwin: i think you're supposed to say what you would do about it. nelson: yeah. i do have some ideas about that and i could kind of give a little bit of background. i went and read all of the transcripts, the confirmation hearings of the last four justices. and when they were asked what they thought the role of the judge was i found what they answered and you couldn't tell the difference between the answers. if i read the answers you wouldn't be able to tell which nominee it was. they said recall exactly the same thing. the job of the judge is to apply the law to the facts, my personal views on anything have nothing to do with being a judge. it's a very constrained, narrow, legalistic law. the two most striking cases

were president obama's nominees both of them were asked, well, the president said it's all about your heart. that's a really important part of being a judge. and that's why he picked you. and they said, oh, no. i don't agree with that. both of them said they don't agree with that. so there's -- they say -- and all of the senators seem to agree on both sides of the aisle that that is what a judge is supposed to do. i don't think it's that completely impossible for them to do that a lot more than they do now. there was -- i saw a report of a talk elena kagan gave to a law school where they described the conferences. she said there's two kinds of conferences. one are the ones that make the front page of "the new york times." they discuss how they're going to vote.

if they have to explain or discuss the case with each other they would just annoy each other. so what's the point of that. then she said there are long conferences and those are about the cases that nobody except lawyers who specialize in that field pay attention to. often those go on for quite a long time and they spend their time trying to figure out what the right legal answer is and they don't come in with settled views and they try to work it out. so my proposal would be that congress do a few things to encourage more long conferences and fewer short conferences. and i have four proposals which i worked up with my colleague, craig lerner, and i'll state the conclusions without giving reasons. first, congress could require all opinions of the supreme court majority occurring in dissent to be unanimous. in fact, universal perk opinions. but that would include the concurrences and the dissents. second, they could actually expand the jurisdiction of the

court. you know, right wingers often, you know, go in for these jurisdictions stripping ideas, cut it down, let them do less. i would say let them do more. and there's a -- there's no longer used statutory mechanism by which courts of appeals could certify a question to the supreme court. on issues they think the courts need, the lower courts need more guidance on. the supreme court doesn't like to be told what cases to hear so they never ever any longer accept these certifications. so my proposal would be for every cert grant on a federal case they have to take one certified case from the court of appeals and that would give them more opportunity to try to deal with the kish use that lower courts actually think they need guidance on. the third thing i would do is take away their law clerks who are very pernicious on the

culture. linda: that would affect half of the people in the -- nelson: the law clerks have a pernicious influence to the extent they serve a valuable function in doing research. that could be assigned to the office of the librarian of the court and the result of that research would then be shared with all the justices, not just little research projects aimed at -- at a particular justice and these clerks and librarians wouldn't be permitted to draft opinions at all. now, right there requiring the justice to write their own opinions would have some of the beneficial effects of term limits because -- [laughter] nelson: if they actually had to do their own job we would have -- we would have fewer justices who stayed in the saddle past the time when they can no longer mount the horse. [laughter] nelson: and my last suggestion would be we bring back circuit

writing. that was from 100 years they were required to do circuit writing by congress even though they hated it. they finally managed to get rid of it. bring it back. they got plenty of time during the summer. they could spend a little less times in the alps and more time sitting on some of the lower courts doing real judicial work. and i think these are all marginal changes. very modest proposals. [laughter] nelson: they won't give us the perfect court. that would only happen if we appointed eight more justice thomases. linda: these are wonderful blue skies proposals that you and craig lerner have an article which you -- which i assigned to my students every spring. i wait until the very end of the temple so they have formed their own views. then i present them with yours and i think it's one of the

favorite assigned readings of the whole semester. nelson: yeah. i'm often good for a laugh. [laughter] linda: so anonymous opinions. for some of the european courts take a different approach but i think approaching the same problem is they don't allow dissenting opinions, right? so you could have anonymous opinions that would speak for the entire court without concurring of dissenting opinions -- you're writing a new article about that? nelson: i wouldn't do that. i understand the european judicial culture is quite different from ours. i think dissenting and occurring opinions can serve a valuable purpose. -- concurring opinions can serve a valuable purpose. informing the bar about disagreements within the court,

what i think making them anonymous would do, insists on anonymity wouldn't do is curtail a lot of the showboating. and, you know, many opinions nowadays are not written for lawyers. they're written for "the new york times," they're written for case book editors and there's a lot of stuff in my view just doesn't belong in judicial opinions in the opinions of many of the justices. and that's not a partisan or ideological thing. anyone who follows the court at all will know who i'm talking about on both sides of the ideological divide. linda: so the dissenting and concurring opinions would also be anonymous. nelson: they would be anonymous. linda: anybody have reaction to that? elizabeth: well, i think that, you know, the -- i think having -- authored opinions is

important because if we had anonymous opinions i think it would make the transparency problems that larry mentioned perhaps even more pronounced because, you know, i think it's important for you to be able to say justice scalia authored this opinion and it is in contrast to these three other opinions that justice scalia has authored or joined. and so i think that's an important part of synthesizing precedent and also allowing the public to hold justices accountable if they deviate from precedent and from their own stated views before. so i think that not being able to do that would be harmful. linda: gos back to larry's -- goes back to larry's initial point. where is accountability? elizabeth: well, i think i'm not saying that they're necessarily very sensitive to public outcry but i think that, you know, one -- if one takes seriously one's role as a

jurist you want to see as principled rather than unprincipled and if you willy-nilly decided according to your particular preferences in terms of outcomes to the case that would be sufficient outcry in cases where i think it's been important to hold justices that say you voted this way in race you should vote this way when obamacare comes before you and if you don't maybe that's motivated by politics as opposed to a principled statement of the law. erwin: and the way we hold them is presidential elections and who reelect to president in 2016 is tykely to fill four vacancies on the supreme court. there should be no issue in the 2016 presidential election more important than supreme court justices. larry: i got to say that statement which is sort of true and said a lot is insane. something has gone seriously

wrong with your democracy when the statement that's made is what we really need to worry about when we choose the president and our members of congress is who they're going to put on the supreme court. i mean that is just -- i'm not -- this is not critical of you,erwin, because it's an apt statement and a clear statement of what the core problem is. i -- i would absolutely get rid of the law clerks for exactly the reasons that nelson has. what do you have to make them -- so accountability -- the court is acutely self-conscious of the limits of its own power. the problem is where we have set those limits is so far out there they can go really far. so the question is what other devices you can have to reproduce some semblance of modesty with respect to their views as compared to the views of lots of people who disagree with them? and so as i say, i don't think that's incorrect but it is just. whoa, what kind of democracy is that where it's like the unaccountable branch that we have to worry about because,

like democracy is great except things that are important. those things we have to give to the law -- i think to me that's crazy. erwin: largey insulated from direct electoral accountability to define the meaninging of the constitution and while i'm -- i still believe we as society are better off with that kind of constitution. -- institution. larry: no, we're not better off. we didn't have that until recently. across the course of american history -- actually what amazes me the progressive audiences should hold this view so much more strongly than others because across history the court has been a reactionary institution far more often and in way more ways than it has advanced progressive causes.

erwin: criminal defendants, prisoners, a homeless man before the supreme court, a guantanamo detainee, for them it's really the courts or nothing. and so to say we're not going to have the courts available when is the last time a state legislature expanded the rights of criminal defendants? larry:erwin, where are you living? they're doing it all the time now. they are coming in waves. for progressives, very brief and exceptional period in american history has put over the whole of american history. all of the progressive reforms in criminal justice that took place both in the runup to the 1950's and 1960's, we tend to focus on the things that supreme court did without paying attention to the parole reform. where did that come from? the supreme court didn't do any of that now it's all in the face of a really radical conservative supreme court on criminal justice rights where we actually find the one area which we got breakdown in

polarization is prison reform and criminal justice issues. so you have to take the longview and not -- you say people you represent, yes, you were a lawyer during exactly that period. i see that. it's not that we never had padre. but if you have to look at the courts of american courts, it's hard to -- that's not the basis for my vufmente i don't care one way or another. i actually believe in democracy. nelson: if i could go back to elizabeth's point which i disagree with. i think it's been a pernicious development that justices feel compelled to stick with their own personal precedence. it used to be that the precedence were the decisions of the court. and oftentimes very commonly once a court decided an issue, the justices who were in dissent simply accepted that precedent and that was the precedent of the court. in recent decades we've seen an increase in this idea that each

justice has to be consistent from case to case. linda: self-stari decisis. nelson: and it's the court being less than a court. i think if it's anonymous people could change their reasons for political reasons. they can do that anyway because there's not a single justice in modern time who wouldn't hire a law clerk to distinguish a way that some inconvenient precedent for that reason or any other. justin: i agree with nelson on the idea that justices should not fear changing their minds as much as they seem to. it seems to be that that causes them great pain to say that i changed my mind. rather one sometimes encounters explanations of why they decided to vote in laurence vs.

texas. it would be better if people could explain to that. i think if they talked about what led them to change their mind would be advantageousous. accountability and how we hold justices accountable, i think one of the ways we hold them accountable is signing their names to the opinions themselves. they write a dissenting opinion in 1896 and if we can identify justice harlan wrote that opinion, right? or they wrote an infamous opinion on behalf of the supreme court, i think it's helpful to be able to identify the particular justice that wrote that opinion. i'm not even sure it's actually possible to have anonymous opinions anymore given the sophistication of computer databases that would be capable of sort of knowing who wrote the opinion. that takes to the question of law clerks, right? and as to the law clerks, i think that law clerks -- it's not all that long ago that i was a law clerk. i think -- at least are capable of adding something valuable to

the institution and perhaps what's most important is not so much the drafting of opinions to the extent that that happens but instead it's the voice of a younger generation. many of the justices are in their, you know, 70's and 80's and frequently are cases involving technological issues or issues of you know, swirling social import i think it's incredible valuable for the justice to have in their chambers they can talk to these issues. i think it's reluctant to -- >> it's a funny process to bring that expertise to bear. .

mr. chermerinsky: imagine these three justices stay until their 90. that's too much power to be exercised by a single person for too long a period of time. also too much now turns on the accident of history when there is a vacancy. richard nixon had four veterans day can says in his first two years as president. jimmy carter had no vacancies.

18-year nonrenewal terms mean every president would have a vacancy every two years and that would be better. >> i don't have objection to terminates. 18 might be too long. two might be better. you could have rotating circuit judges serving on the supreme court for two years apiece. that might be even better. >> i think i'm opposed to term limits. mr. driver: one would be the constitution of the united states. there is article 3 section 1 which falks about the tenure the justices have. assuming one were even able to have a constitutional amendment which i think would be required to bring that about, and that seems incredibly unlikely. i worry about the cost of the constant churn of supreme court justices if there are a turnover

every two years, one could imagine the justices having even greater incentive to have these sort of strategy arguments about whether to hear a case or not. and that causes me concern. i should also say some of our most distinguished justices served for more than 30 years. think about chief justice john marshall and wrote some rather important opinions that shape our constitution universe after he had been on the court for 18 years. the same could be true of ol liver wendell holmes. before we start thinking about imposing these tenure requirements, i think we should be really careful to have these sort of strategy arguments about whether to hear a case or not. and that there. one of the reasons is because -- i do think it incentivizes justices to think about what they are going to do after they leash the court. and that seems like a mistake to me. earl warren was attorney general of california during the

internment of japanese americans. and then he joins the supreme court and votes in way that's very incompatible with it. one of the reasons that he was able to vote in the way he did as a justice on the court is because he didn't have to think about the next election or what was going to come after leaving the court. there is a real virtue in having people go to the court and understand that's the last position that they are ever going to hold in their professional life. >> i think the proposal, actually functionally achieves -- doesn't require a constitutional amendment is perfectly lawful. mr. cramer: i think i reasons is would favor term limits. think of the justices over time who served long and the vast majority don't do their best work. they are so out of sync at that point with the country. what i like about the idea of a regular turnover is it's one of

the ways you can preserve strong judicial independence and supremacy and not worry about the court to veer too far away from where the country is moving because of the constant turnover. the question which is a good one, i don't think a justice would have too much trouble finding a good job after stepping down off the court. most law schools would hire them. but the confirmation process would have to change. it probably would if it was every two years. it would bring the stakes down for any single appointment. >> one answer to justin's concern about losing the best work of the older justices might be that with regular turnover there wouldn't be such a incentive to put the very young justices on the court. i think one could make aneringment that the framers' view was that service on the

supreme court would be kind of a capstone and not something that would come early in somebody's legal greer. -- career. touchdown mr. greenhouse: -- people might not be completely up on various proposals. ms. greenhouse: there is an argument it could be done without a constitutional amendment if somebody got life tenure on the supreme court but the actual act of the job serving as a working day-to-day justice would be for the nine most junior people of the group. am i right about that? >> they say it wouldn't require a constitutional amendment. i'm skeptical. i think it would require a constitutional amendment. but here i disagree with justin

about the impossibility of a constitutional amendment. when rick perry ran for president four years ago, he proposed what i suggested 18-year nonrenewable terms. mr. chermerinsky: we have conservatives like rick perry and liberal like me, maybe it's plausible. i have spoken to audience abouts this, it's interesting on the rare occasion i get interrupted with the clause it's for the 18-year nonrenewable term limits. i didn't do that on purpose. i do think there's much more support for this than we might imagine. it would take time to build this support to turn into a constitutional amendment. i don't think it's impossible. ms. greenhouse: you mentioned your concern about the confirmation process and the hearings and so on. i guess another people that support the 18-year term say is that if -- that would mean every president would get two nominees.

so that you would avoid the kind of entrenchment problem -- issue that fate would devolve upon the lucky presidents or unlucky like jimmy carter who had done. there would be an expectation of regularity that might lower the temperature, lower the stake somewhat. -- somewhat of the confirmation process. is that something that appeals to you? >> lowering the stakes appeals to me. whether this would do much tort that end i'm skeptical about. mr. lund: i think the high temperatures that occur at supreme court confirmation hearings since the bourque hearing are something narrowly new and probably contingent on the fact we have a somewhat closely divided court. i think that's probably a more

important factor. ms. wydra: i'm not sure it would lower the temperature at all because part of what raises the temperature is the fact that these very high profile, very important cases get to the court in the first place. which i guess larry thinks is a bad thing. but that would still happen even if we had the 18-year terms. i think we would still have heated confirmation processes. i'm not sure what we get out of the term limits, i guess. and i think perfect example of counter point to the idea that justices toward the -- toward long period on the bench don't do some of their best work or aren't as ceded to current societies. our speaker tomorrow, justice ginsberg she's been notorious at the end of her career. you can't be more embraced by the younger generation.

if we had term limits we might not have gotten some of her best dissents in shelby county. a lot of these things come by somewhat by accident what cases come up when you have which justices. jack did this experiment of what would happen if we had the 18-year term limits. he thinks row v. wade would have gone the other way. i don't know what we get out of that. >> we can forget the one that maybe it should go up. it's not there are not individuals. here i can speak with experience. . mr. kramer: the term i clerked six of the justices were in their 80's. i will tell you they were not all there. it was not that the law clerks stepped in and we did what we wanted. we didn't.

what we did is we would extrapolate from their past opinions where we thought they would want to go. there was not the same ability you don't know that far and no farther. do you see this? you see a lot what we did is we would extrapolate from their past of the elderly justices became exaggerated versions of their youngerselves. so again you can't do this by anecdote, but on balance think about the important things that you might want to construct for your own lives. who -- do you want the ability to get people who are at the very very tail end of their lives and whose abilities are unquestionably declining? or people who are at the peak of their powers? i don't think there's any question the most important things on balance, i'll take the people who are at the peak of their justices became powers. there's no reason this should be different. mr. chermerinsky: those 40 years were a terrible failure by the supreme court. incal -- incalculable damage to the supreme court. justices had remained on the

court far too long. i think the advantage of 18-year nonrenewable terms is saying that we will have new justices coming on the court, but still give 18 years which the long time to make a mark on the constitution. and a long learning curve. ms. greenhouse: i'm curious given the arc of your own career and scholarship, does that year of clerking is that what gave you the view that judicial supremacy is overrated? mr. kramer: i would say part of it i kwlerked for judge friendly the year before and it was amazing. he approached the job the way i had been taught. then i got to the there's supreme court i was angry the entire year. it was such a disappointment. every single respect. some of it was the aging issues. it had nothing to do with the ideological stuff. it was the way they worked. it was suddenly sitting inside that bubble realizing what an incredible bubble you were in. the complete unawareness of real

consequences just in the few cases where i thought i had some sense of what they were on and on. i didn't come out of the court, it took me a long time to get to the views i got to. we were in law school at the same time. were you the year behind me. we had this argument at the time. i was a staunch defender of judicial supremacy at the time, and he was not then. took a long time to come around. a lot was because of the kind of arguments erwin makes which i don't dismiss lightly. there is a hard judgment to figure there are obvious benefits from having the unaccountability as part of the mix. the question is how much do we need? we have gone way farther than we need to with my view so that there's some notion that the court is anything other than anle00 pound political gorilla, which it is and always has been. even in the weakest periods. we don't need to be quite so afraid of doing things doing things

that make them get them better information. make them more aware, make them think they need to be more aware . >> how old was judge friendly when you clerked? mr. kramer: he was 82. he was extraordinary all around. smartest human being i ever met. i talked to the people who clerked for him ahead of me. there was still a declined. he sutched at such adyry particular cue lussly high level. it must have been something to see him in his 50's. >> judge friendly decided not to go until his powers were gone. he decided not to stay on court until his powers were completely gone. mr. kramer: yeah. ms. greenhouse: if i understand some of your recent work, your view is that the court hasn't necessarily been counter majoritytarian enough. that's a power that the court has for the court.

it shouldn't be shy about using. so i want to give you a chance to talk a little bit about that. mr. driver: i think that the supreme court has fallen down in vindicating the constitutional rights of marginalized citizens. some people would say that's because the supreme court is fundamentally incapable of vindicating those rights. it's just too fragile an institution. when it attempts to vindicate those rights, it ends decided not to up making matters much worse. it can't come to the rescue of marginalized groups. you hear this all the time with respect to roe vs. wade ander ifman vs. georgia, the capital punishment. even brown email are say it's a seventh grade perception of the court coming to the rescue of racial minorities is in--

inaccurate because the nation as a whole was committed to racial egallontarian. that oversimplifies brown. the north was not quite of land of racial enlightenment we sometimes pretend. more important than that, the supreme court does have the capacity to vindicate rights, even for very unpopular groups. if you think about kennedy vs. louisiana from 2008. a decision having capital punishment for individuals who rape children. the court says that's unconstitutional. you can't do it. if you pull that -- ms. greenhouse: based on a mistake of facts. mr. driver: if you poll that opinion it's not a great surprise people would say the majority of people would say, yes. you can inflict capital punishment on those people. if you think about texas vs. johnson for that matter in the first amendment context. flag burning. if you poll that question, more than 80% of people say you should have a law against that.

nevertheless the supreme court steps in. invalidates those measures and stands strong. even in the face of proposed constitutional amendments. so if the supreme court hasn't done a good enough job not because of lack of capacity. i think it's because of personnel that's on the court. and their desires and their constitutional visions not offering enough conception of -- to afford people those rights. when one looks back over the appointments from earl warren, which i think is the beginning of the modern supreme court in 1953, through justice alito's nomination in 2006, there were 23 justices confirmed to the supreme court. 17 of those justices were appointed by republicans. only six were appointed by democrats. of the 17, 10 of those appointments happened in a row.

so when one thinks about what the supreme court is capable of doing, i think it is mistaken to only look at sort of history and not think about what the supreme court could do going forward. i really do worry about people who are in law school today constantly hearing don't file lawsuits. instead go to the public square, go to the statehouse, that's where the real changes are created. there are some people for whom going to the courthouse is the only option. the court has stepped in and successfully vindicated rights on at least some occasions. there is no reason to think it's an incredibly powerful institution. citizens united is another perfect example. i understand you regret that power, but it is a powerful institution. the question is what that power will be used for. ms. greenhouse: you mentioned when you were talking about the self-starter the courts not acting as a court.

is it acting is this a play on what just continue was saying? is -- what is the court if had you to identify? mr. lund: a kind of monster. it really is two courts. what justice kagen said at the law school talk is a sign of that. there are two courts. there is the political court and then the legal court. for a variety of reasons the legal court is smaller than i think it should be. and the political court is much bigger than i think it should be. maybe if they had different justices up there more in accord with my views how to interpret the constitution, i would feel differently. and it would be fine to have a political court. i don't think so.

mr. chermerinsky: i the assumption of that state is value neutral assumption. that's impossible. when you're dealing with the constitution. you are dealing with a document written in open text language. what's cruel and unusual punishment? due process of law? no way to decide without value of judgments. no rights are absolute. there is a balancing. we call them the levels of scrutiny. court has to decide if it's a fundamental right. is there a compelling government interest. such as diversity in the classroom a compelling government interest. even if it's rational basis, the court has to decide is there a legitimate government interest? even if the court chooses rational basis review, they still have to ask if there's some legitimate government reason for keeping gays and lesbians able to marry. there is no legitimate

government reason. all of these require a value. [applause] mr. chermerinsky: all of these are legal questions. all of them require a value choice. and there's no way of having value neutral judging. it's a mistake to say two courts, one that's political and one legal. there's all legal and all has value choices. ms. greenhouse: social science research that indicates that the public understands that so that although there's a political culture that forces judicial nominees to say, as nelson said, my job as the supreme court justice is to apply the laws to the facts, the public knows that's not true and they are ok with that. you can hold two thoughts that you -- in a way the public seems to want judicial nominees to say that. let's assume. or else they wouldn't be required to say it.

the politicians would require them to say it. but on the other hand the public well understands that judging is a val inflicted task. liz liz? ms. wydra: i don't know that the public is necessarily ok with the court acting like just another political entity. i think that sometimes -- ms. greenhouse: that's not what i was saying. ms. wydra: i think there is an understanding that the justices have thoughts and experiences. i think maybe getting an increased diversity of those experiences, talking about --justice o'connor as the last justice who had state legislative experience so maybe getting a diversity of experience with more public defenders. fewer prosecutors. more folks who have been public interest. people who just been in law firms. maybe that would help. the idea of the court as justin mentioned as a protector of

rights is something that we shouldn't overlook. and the idea you can achieve things in the court that you couldn't through the political process is incredibly important. today is the anniversary of levin vs. virginia. while it's true that most of the states didn't have -- banned interracial marriage on the books, there were still a hard core group of states that would not have done this without the court stepping in. it's important to note that even if the court is not necessarily leading on these things, many would say the marriage of quality cases, but certainly there are case that is will not without the court telling them recognize the constitutional rights to equality. that's a really important role of the court. >> all of this is completely fair. what's bizarre is the impossibility to have nuance in this debate, not this debate but in cases, but certainly there are case that is will not without society. . mr. kramer: nelson's position is there isn't value that you use.

there is a big difference in the relative mix and when you take a case and how you decide it based on that. there are also legal considerations. i think i feel comfortable saying 20, 30, 40 years ago, almost no other time would a case be in the supreme court. it's ludicrous that it's there. much less it could possibly come out the other way. it tells you something has gone seriously wrong. the thing that has gone wrong eseem incapable of saying the court should have a role. now we have to protect it to enable them to do anything they want. brown ising it at the time brown decided there is no question judicial supremacy was not established as part of the culture. you see reflected in the bushback at the time. what you got what made this work was not that the court had no role, it's the gullmination of the legislation you get in the mid 1960's which the court is one piece. so is a popular political movement that has nothing to do with the court. the notion you don't want people

to go out to be engaged in the political -- the question is, how do we find a billion woor dough wye don't have to say the court will be our protector of rights, therefore no matter how unprotective it is we have to protect their authority because someday we hope maybe they'll do something we like. every once in a while they do. i remember robert post showed me when the court decided pierceson myers, they sent those opinions around to the editors. see, we are not always conservative. here's a liberal one. they'll toss a bone and decided then use that to do 25 other things. that will go bothways. this is not whether you are liberal other conservative. the question is can we have a system as we did for most of american history where we can have bush pushback. what are the devices to push back?

the things nelson lists are great. jurisdiction stripping is great. budget slashing is fine. that the things nelson lists are great. jurisdiction stripping is great. budget slashing is fine. court -- who did lincoln. reconstruction congress, teddy the opinion but it would be unpatriotic to do anything other than acquiesce. in 186 -- 1876 that would not have happened. the court didn't feel it had the ability to step in. so it's that dynamic we need to be aware of. so we do need some devices. i think it's good to talk about

what they are. term limits are a possibility. they play a role. we have moved in our this? jefferson, jackson, public debates so far from that. obviously my view, depressing sometimes that my fans are ralph nader and newt gingrich. that's got a left-right thing. that's not where i like to be on either one. something is wrong when the notion of challenging judicial supremacy is so roosevelt, franklin roosevelt. it's only in the last 50 years we have moved to the fringey. >> it's not an accident the notice of challenging judicial supremacy is a french phenomenon. mr. driver: we have to think about the 1950's. there was pushback as you say in the form of most prominently the southern manifesto where a group of southern congressmen and senators get together and offer their own constitutional interpretation. incredibly legalistic document. one can use that to stand for the proposition judicial

supremacy may not have been so widespread. that makes lots of people incredibly uncomfortable when individuals are taking the constitution in their own hands. moreover, i think that the notion of judicial supremacy was a good bit more widespread in the 1950's. as judged by the results of the southern manifesto. people responded in strong terms. who are you-all to offer your constitutional -- your constitution doesn't -- eisenhower said something to that effect and many others said this in newspapers around the country said who do these guys think they are? it's not an accident that given our sort of modern historical moment that individuals, many individuals are made uneasy when they say i don't care what the supreme court says i'm going to go ahead and do it. mr. driver: that was true when- -mr. dramer: that was true when everywas -- jefferson was there

as well. pick who your conservatives are. the progressive position was always in favor of democratic authority. all that happened after brown it takes time. the left flips and right doesn't. the debate shifts. suddenly for the first time gick in the 19 0's it shifts to how do you interpret the constitution? suddenly the stakes are so high. that is a new development. not that it hadn't been before. the dominant position shifts and it shifts. because the left is a shortsighted action flips on this idea. now suddenly we have agreement from left to right. that is the court should tell us what our rights are and what the constitution means. now we have to wait for someone to die or retire or get tired of the job or amend the constitution which is nearly impossible torques undo what they have done. ms. greenhouse: little bit of flipping going on today seems to

me on some of the various jurisdiction lack standing. in the past it was liberals who wanted they generous ideas of standing. now all of a sudden, any plaintiff, let's not investigate their standing. not question that. or question the standing of abgallon fisher to bring the fisher case even though she graduated from college and there is no redress of the standing doctrine. and maybe that reflects a bit of what you were talking about. >> i think there you have to separate the litigant's choice from the decisions. i don't understand why the university of texas didn't challenge abigail fisher's standing. or the solicitor general's office didn't bring a standing

in king vs. burwell. mr. chermerinsky: it was the litigants' choices. in terms of the supreme court, i want to be clear. we shouldn't bring of the supreme court as liberalizing standing. clapper vs. amnesty international two years ago where the supreme court ruled 5-4 that no one would have standing to challenge federal law. giving national security agency the ability to intercept communications. and the reason was that no one could show their communications were deceptive by the n.s.a. because they don't tell people. there's a terrible decision in terms of standing. very restrictive. that's the most recent ms. greenhouse: when some of you were clerking the court took about twice as many cases or even more. more than twice as many cases as it's deciding today. some of the things i'm hearing maybe they are still taking too many cases. what do you think?

court deciding too much. mr. lund: i think they are not taking enough cases. they are just ike taking the wrong kinds. a professor named arthur hellman did a study of the court granting practices. what he found there was a cultural shift on the court of -- away from an obligation to resolve circuit splits. they can always find some way of saying it's not a true split and all this thing. if i recall correctly, he suggested that justice white was the last justice on the court who really took that obligation to clarify the law where the circuit splits take that obligation seriously. he suggests with a lot of data that that's pretty much gone now i do think that's unfortunate.

they should take more cases that actually involve more law and less politics without suggesting that you can have a pure version of either one ever. >> don't think it matters. mr. kramer: there is a reasonable number of cases and could take more that actually are technical legal cases. you need somebody to resolve them. the supreme court is fine for that. they have that expertise both as judges and law clerks. then in any given clerk -- term. ms. greenhouse: you want to get rid of the law clerks. . mr. kramer: it doesn't matter whether there are 75 or 150 cases on the merits. there are four or five that are the big cases and that's why we are here. those are the buns we care about. there would be those in either domain. i don't think you're going to affect the fact that there are these momentous issues. supreme court has assumed, and always had to some extent, a role in helping resolve those

issues. and i don't think much would change because i don't think it changed in the move from 150 to 75 cases. mr. lund: it would be a marginal change. ms. greenhouse: you think every circuit -- mr. lund: how you decide a circuit split. i should point out there was a time when the supreme court decided hundreds of cases over the year with no law clerks. so this is not -- ms. greenhouse: it was all opinions. mr. lund: they decided the cases. they were acting like judges. that's not an impossible thing for them to do. ms. greenhouse: are there any kinds of case that is the court is ducking or failing to take note of that they should take? mr. lund: second amendment cases. they recently denied cert in a

second amendment case. a dissent from denial of cert. ms. greenhouse: anything else? mr. chermerinsky: every time there is a conference i see cases where there is a real circuit split that requires solution. inexplicably cert is denied. this year the court had oral arguments in 68 cases. last year the court decided 68 cases. before that it was 73. before that 65 which was the smallest number. as nelson points out as recently as the 1980's, the court was deciding 160 cases a year. i think there are cases where there are splits among the circuits and the court is not taking them. i also think a pernicious consequence of the smaller docket is the opinions have gotten longer. i can show you, as the number of

cases goes down, the length of the opinions goes up. i don't think it's led to better analysis or opinions. ms. wydra: it's like defense of the opinions. also in defense of the -- there was of cases goes down, the length of the opinions goes up. i don't think it's led criticism about the opinions being not written for lawyers. in defense of interesting and maybe long opinions, that is one of the rare instance where is we do have some transparency from the court for the public. if that is the way the public generally gets information about what the supreme court is doing, having those opinions being written in way that is so interesting and understandable for the public is a good thing. i would note on the cases the court should take, there are cases opinions being not involving criminal defendant's rights that the court is not necessarily taking. i don't know if that's because they are not interested. i remember a day, the day the court granted the case about the destruction of fish and whether that counted as evidence destruction. they denied a petition where there was a circuit split on --

whether you can have a nonunanimous jury sentence a person to life at hard labor. i think that's a fair constitutional violation. and i wish the court would have taken that. i think some of these cases involving -- they are not sexy social issues. they are not high political issues. they don't have big business interest behind them. but they i am pli kate incredibly important constitutional values and access to courts. >> one area i would identify involving cases that the court should take more of but seems reluctant would be in the context of student rights in the elementary and secondary school context. mr. driver: the court hasn't defendant's rights that the court heard a case involving student rights in the last six terms. during the roberts court, the reading case involving the fourth amendment. and the bong hits for jesus case. involving student speech. there are three major cases that

the court decided. it seems not to want to get involved. there are lots of discussion about the court is ill-equipped to be able to get involved in this arena. this is a place where they shy away from getting involved. because sometimes these cases are contentious because when we think about our schools, we are thinking about who we are as a nation. i think that that effort to stay out of that matter is mistaken because the lower courts do need guidance from the supreme court in order to be able to deal with the cases. ms. greenhouse: can you give us examples of the kinds of cases that are being cert denied? mr. driver: one of the major issues in the area that the circuit courts are -- speech that happened outside the school context. on a home computer or some other way that ultimately comes back into the school. into doesn't fit into the

traditional -- that doesn't fit into the traditional categories in any way. that's one of the major issues. there is a case involving religious speech by about home sexuality. these are really difficult cases, but they are common in the circuit courts as well. the court seems to not want to just get involved with that at all. there was a case the court denied this term involving students wearing the american flag to school in the ninth circuit. being told that was impermissible. that sounds insane. the exact context was on the day of cinco de mayo and this was seen as a sign of rebellion and maybe even -- that was a very divisive case in the lower courts. it seems like there would be a place for the court to step in and get involved. ms. greenhouse: a case we need

the court for? mr. kramer: i don't think i know enough to really say. ms. greenhouse: you mentioned court stripping as a valid way of constraining the court. if the public so desires. the most recent occasion i can think of for that was when some people in congress got concerned that the court was relying too much on, quote foreign law. there was a house resolution that was passed i think not with the expectation that it would result in some serious piece of legislation, but as an expressive pretest that the court and justices decided quote, foreign law, should be impeached. what about court stripping as

appropriate constraining mechanism? mr. chermerinsky: what would stop congress from adopting an unconstitutional law and precluding the supreme court and lower federal courts from being able to review it? if congress can do that, then we really have lost what the judicial branch is there for and what marbury vs. mad smon created. -- madison created. you mentioned the possibility of budget cutting. just yesterday the kansas legislature passed a law that said if the kansas supreme court decides in a particular way, the funding for the court will be stripped. if anything it is a violation of separation of powers. it has to be that. mr. kramer: you have a really simple-minded, but a simplistic conception of the way democracy works, that sort of way of thinking about this matters. this is where looking in the past is helpful because again, the idea with these devices is once the threat is realistic,

you seldom need them because the court is acutely conscious of how far it can go. the jurisdiction stripping proposals were routinely introduced. they almost never passed. and that was not because of judicial supremacy. if the court f. they go above the responsibilities responsibly, actually it's an 800-pound gorilla in politics. they played the judicial role in the judicial way. but there is a difference between sort of --dy a talk where it was clear he took pride . he was proud when he could say what i'm doing is absolutely what everyone else in the country thinks is about and wrong. that struck me yes, we want your indpend judgment. it should be in light of what they think. they are not idiots, either. the way democratic politics works is these become the point of engagement where these issues are actually flushed out. when i think about the southern

manifesto, it started a debate. it didn't end one. it provided the grounds which you had real public engagement that produced along with a lot of political activities. the civil rights of 1986, and that was so much better and such a better solution. you don't think that when the court is effectively deemed to be a shutter off of politics. it never completely shuts it off. the way people respond to the court isn't whether they agree or disagree, it's a product to the extents they feel entitled. i treat my boss differently when i disagree with him or her than i do my subordinates. and whether the court sees itself as our boss or subordinate will affect profoundly the way it operates. if you look historically, i think you get better balance with these guyses being available. they don't seem to happen. we got reasonable responses.

marshall court in the 1820's, didn't stop being the marshall court but pulled back and probably to the benefit of the country. pulled back in the face of the introduction of all these bills. it's not the ideal way to do it. the europeans have better ways. this is what our constitution leads us, when it was written none of them imagined the court playing this role. they put strong judicial independence there. the english history problem i don't care if he's guilty or innocent, i want him convicted. we wanted to make that impossible in the individual case. they were stuck having to cobble something together. there's all sorts of devices you can use. these are the ones we have. i would say i would rather have them than nothing. when you have nothing what you get is this court. ms. greenhouse: we are having cards collected if people have questions. ms. wydra: i want to pick up.

i think part of your -- what your comments reflect is things actually are working now. we do have these pushbacks from the other branches. we have -- when congress doesn't like what the supreme court has done, it passed law. we have the president able to say after citizens united to the american people in the state of the union address this decision has dill tearous effects and it's a problem. and he's speaking to the american people in a way that he's empowdered and entitled to do so. -- empowered and entitled to do sow. whether the court is a failure, part is self-interest in saying it's not because i devoted my career to litigating in front of the supreme court. if it's a failure, illegitimate institution, i might as well not get out of the bed in the morning. i think that it many important ways it isn't a failure. part of that is because it is the independent judiciary thature founders put in place

instead of some of the european or english model. that doesn't as independent. the legitimacy of the institution is reflected in the fact that the american people -- even when gore comes out the next day and says i disagree with the decision and stand by it. that is an institutional success i would say. when you are looking at an independent judiciary. it only continues to be that way if there is some sort of idea that the court acts according to the law not just politics. no one has said this more often than chief justice roberts who says he doesn't want the court to be considered to be just another political entity. of course i think we have a lot of instances even in the roberts court era where that doesn't seem to be true. you have a citizens united. the court reaching out to something they didn't have to decide. and burwell will be another major test. you have scholar from across the ideological spectrum saying

there is no legitimate method of statutory limitation. that is a test of whether the court will follow law or politics. that's something to watch to see whether or not the court is a failure. i think right now i would be sort of the voice of optimism saying that it isn't. we might disagree a lot, but institutionally it's not a failure. as it did decades ago when it issued loving vs. virginia. ms. greenhouse: our conversation has provoked quite a few good questions. maybe i'll turn to those in our last 15 minutes or so. are there lessons or reforms from state supreme courts that could inform the federal supreme court? mr. chermerinsky: a number of states have a merit selection system for their supreme court justices.

any -- a president could create a commission, bipartisan and say he wants names two or three at least supported by 2/3 of the group, he promises either to pick from those names or ask for additional names. as an example, alaska has used this system to tremendous suck it's. sara palin picked a -- success. sara pillin from those names or ask for additional names. as an example, alaska picked a person who barack obama put on the ninth circuit and he thinks she's one of the most liberal judges. jimmy carter created merit selection for federal district court and appeals appointments. i think i could make the argument they are surge among the best, most diverse in american history. i think he mite have done that for the supreme court had he only had a supreme court veterans day cancy. this wouldn't take a constitutional amendment. any president could create such a merit system. person who barack obama put ms. greenhouse: any other ideas?

mr. driver: i have one question, would the merit selection system lead to the potential nomination of the sorts of people larry was speaking about earlier, the public figures, senators, other folks who played an important role in public life? or would it lead to the more traditional way of judges on the courts of appeals being in effect a farm team for the supreme court? like larry i am drawn to the old model. it's hard to imagine that earl warren would have been on anyone's merit selection team. he was not and enriched law student. even during his own time. i guess that's concern about the merit selection system. mr. chermerinsky: it could include life experiences and political experiences. merit doesn't have to be so narrowly defined. so i think a merit selection, like john other roberts and ruth bader

ginsberg. i don't think it would produce some of the others. i think it could produce another felix frankfurter who came from being a law professor or hugo black. it depends how we define merit and creating such a process would cost a discussion of what we mean by merit. that would be a good thing. >> other state court focus questions. ms. greenhouse: we talked about the failings of the appointment lifetime tenure system. but the majority of state courts have elected judges. many have term limits. those state judges are subject to attack ads, especially with regard to being soft on crime. what is the answer to judicial impartiality? i take it this asks us to reflect on the dangers of the election system for the state courts. not quite our topic, but we certainly have seen recently in the state courts -- wisconsin is

one example of the mess it's created up there in the recent judicial election and unseeding of chief justice abramson. terribly messy situation. does anybody have thoughts about electing judges has any merit to it as an idea? ms. wydra: i think i agree with justice o'connor on this, it's bad idea. we have seen in the states some of the problems which the person who commit smithed question points out. i think that it -- submitted the question points out. it also raises in my mind why some folks who criticize the court want to make it more like the democratically elected branches. i can't imagine right now anyone saying even with all the problems of the roberts court saying it should be more like this congress. like that's existing? it doesn't seem like it to me. i think that's something to keep

in mind when we are thinking about the better alternatives. >> to be clear, i wouldn't argue that judicial election vs. been a good thing. it is worth rrg where they came from historically. mr. kramer: when it was the same fight over who controls the law the jack sownians made a move for cod pi -- jacksonians made a foff for -- move for codification. it would be somewhat subject to control. the interesting thing is judicial review takes a up, takes up in the state courts, establishes itself as regularized and gets picked up in the federal courts much later in the post reconstruction era. there is an irony there where this idea comes from. the way elections are played out it's not a good thipping. the notion of accountability, there are all forms, different ways to produce ability and balance of independence an ability. -- accountability. they thought this through

carefully and each branches of government had the different balance. the long terms. the election by state legislatures. we had lots of options. no one is arguing that we want the supreme court to be elected the way congress s that's not to say we have to go to the other extreme. the other point i would say because i get this pushback congress, are you serious? nothing could be worse than congress. i do agree with that. we are spending $50 million at my foundation to see if we can figure out ways to improve that. if that's the problem, then the solution is to fix that not to give up on it. again turn your lawmaking over to an alig arcy. i don't get that part, never did. ms. greenhouse: f.d.r. added -- tried to add more justices to the supreme court. would adding more justices solve problems or create more problems? we are used to having nibe justices -- nine justices.

ing there nothing in the constitution that tells us how many justices congress should designate. we have the right size on the court? does it matter? mr. kramer: the court packing thing. when lincoln gets elected, they increase the size of the court because they want him to have say. when he's assassinated, they shrink the court. when grant is elected, they increase the court again. those kinds of manipulations. f.d.r.'s court packing was completely successful. you have to look at it not in advice lation. it was part of a package of pressure that you wouldn't have today because people say the kinds of things that were being said in congress in the 1930's would be shattered down across the spectrum and that's why, yes, there is some pushback. president obama makes this one offhand comment about citizens united which is so tepid. wham, he gets slammed by

everybody left to right. how dare you criticize the supreme court -- that is is a long way. go back and read the congressional debates. the congressional debates around the new deal. that's a robust debate that doesn't exclude the possibility of judicial review but doesn't assume the court having failed in the meaning of the important provisions of the constitution. ms. greenhouse: this question may be related. what would the court look like if senate confirmation was no longer required by the constitution? setting that aside. what about the blue sky idea, getting rid of confirmation. mr. driver: it would look more like congress. mr. chermerinsky: no senate confirmation? i think we have to remember historically in the 19th century, 20% of presidential nations to the supreme court were rejected by the senate. almost always on ideological

grounds. in the 20th century, even this century, confirmation battles occur when the senate is of a different political party than the president. virtually never will the senate reject a nomination of the president when the senate is the same political party as the president. it's when the senate and political party of different parties you have confirmation issues. then you do have an important check that i think was completely appropriate and i'm very thankful that the senate rejected robert bork. think how different the law would have been. he was rejected precisely because of his ideology. one of the checks that's built into the system is senate confirmation. we just have to realize what happens when the president and senator are of different political parties. ms. wydra: we can't get rid because of the constitution, but an interesting subset is what about expanding the nuclear option for supreme court nominations.

the idea right now you essentially need 60 votes to get someone through for the supreme court. there is a strong argument that the constitution sets forth majority rule. maybe we shouldn't have that. maybe we should -- in the same way right now because of the deployment of nuclear option for the court appeal judges, we should do that for the supreme court. it is a possibility under the constitution. it's interesting to think about. >> if the supreme court retained the power and authority it has now, senate confirmation wouldn't change or getting rid of senate scon firmation wouldn't change that much because it's the political controversy that happens outside. the confirmation hearing provides you a place in which to do this and have this pressure. it's not like presidents would make the poiments. -- appointments. you would have the same debate unless something changed of the power. mr. driver: on that line harriette myers was briefly

nominate. . -- nominated. i think that is a real phenomenon. it's possible that senate confirmation process itself intimidates some people who may otherwise be attractive judges. obviously governor cuomo was very seriously in consideration during the clinton administration. i don't know what made him back out, he did play hamlet there for a long time. it's possible that the scrutiny one is subjected to through that process makes some people say thanks but no thanks. ms. greenhouse: is it possible that the court's flaw is not enough power especially in enforcing its decisions? case in point, what could the court do to keep roy and other alabama state officials from refusing to comply with the marriage equality decision? so the court can't carry out its orders as we are reminded in history.

should it have some kind ever endorsement power? ms. wydra: in some ways the enforcement power is the belief in its legitimacy. if that became further undermined, it would be even harder for the court rulings to be accepted and followed. which does not say we shouldn't criticize the court, i do think that's the way -- when march -- marbury was decided, it wasn't a given the court's ruling would be followed t goes into one of my reasons for saying the court as an institution is another failure. mr. lund: it doesn't mean enforcement power because it has the lower courts to enforce these things. >> all the departmental debates. always has been a general assumption we'll enforce the judgment in a particular case.

lincoln ignores dred scott. in every other context. i would enforce the judgment in the particular case, i don't have to follow it as a rule. it will force the debate back into politics and you get in every other context. i would enforce the judgment in the particular the public deliberation that the constitution is designed to create. >> going to leave this forum on the supreme court at this point. can you see the last few minutes on our website. go to c-span.org. live now as the u.s. house about to gavel in. members will be returning for brief speeches this afternoon. legislative work will start at 4:00 eastern today. seven suspension bills on the agenda in the house today. including one encouraging iraq to release three u.s. citizens being held in that country. votes after 6:30. this is live coverage of the u.s. house here on c-span. thspear mpe: the ouse wilbener. the prayer will red ourpla, faher conro chaplain conroy: