constitutional under the taxing power. i think it is constitutional under both. that doesn't make a difference. if it is constitutional, it is constitutional. the result is what matters upit is correct. >> some say john roberts was revealed to be a closet liberal? >> not true. he did not last june 28 discover his inner moderate. [laughter] >> that is not going too happen. he's a conservative. remember, this argument about the affordable care act was a novel argument. this idea of an individual mandate, a requirement that people buy insurancc. >> heritage. >> newt gingrich backed it for a long time. mitt romney in his previous incarnation, passed a law -- >> obama opposed it. >> between hillary clinton,

and barack obama she was for it, he was against it. no one for decades suggested it was unconstitutional. that, you know -- you can debate whether it is a good idea or bad idea. whether a congressman should have voted for or against it. but whether it was constitutional. that is a big call. >> this is not a question of policy, which wwuld have been the former case. it was the question of the law. >> that is right. i think the law is quite clear. i think the court did itself a great favor -- >> has the obama administration -- full disclosure, you and the president were in law school -- >> same universe. he was class of 1991. i was '86. >> with your harvard alumni goggles on, trying to understand what motivates this guy. has he and had his team approached dealing with the court in a good way or bad way during the last 3 and a half years. >> i think in a mystifying way. >> a mystifying way? >> in light in his obvious

expertise in the law and clear understanding of the state of the decisions. he un-like his republican predecessors has not invested the time, energy or political courts with judges who share his vision. >> right. a lot of vacancy. >> a lot of vacancies. and a lot of opposition from the republican senate. he's faced unprecedented obstruction, but been very passive in the face of that obstruction, much more massive than george w. bush was when democrats fought against his nominees. >> it is written that liberals put too much faith in the court..3 c1 i believe in electoral politi politics. that is a perfeccly understandable sentiment. why you neglect this key lever of power that -- >> he's a constitutional law

professor. he should know better. >> if you look at his views, as i have, the professors he worked with. he was not an academic, he was a practicing lawyer. not a politician. never tried to get tenure at chicago law school. he didn't write law articles. >> yeah. >> one of the themes of his view of the law is that, you know, liberals worry too much about this stuff, you know, you got to elect people you care about and the law will take care of itself. i think conservatives have a much more realistic sense of how important judges are and how much play there is in the joints that judges who share your vision can exploit to your advantaae. i think the affordable care act illustrates, the stakes are enormous for these judgeships. you know, he almost had his central achievement undone. >> undone. and when people watch this, it will be after the election.

>> can we say who won? >> i can. but then i have to kill you. let's assume governor romney is the victor as opposed to president obama. isn't it possible ginsburg will decide to depart? it will matter who is president, as far as that court goes and the implications that are 5-4 or 6-3, you don't dispute that? >> no, not in the slightest. one of the themes of the oath is a theme to resonates not just in the courts but all the american politicians, which is the evolution of the republican party. the moderate republicans who they're all gone.

mitt romney with the chance to appoint judges will appoint very conservative judges. >> do you have a sense who he might appoint? >> sure. brent cavanaugh. >> controversial. >> one of the authors of the star reeort. the former solicitor general in the bush administration. >> who litigated -- >> right -- healthcare case. he's going to argue the defensive marriage act case. argued the arizona immigration case. i think lindsey graham, the senator from south carolina. >> who is what passes for a moderate --ish? now centers left. >> i also think there is a lot of demand on both sides of the political aisle for nonjudges on that court. >> why? >> the court that decided

brown v. board of education, not one of the judges had been a full-time judge before. hugo black was a senator. that perspective, beyond, you know, just the narrow legal perspective is something that is really missing on the court. when olito replaced o'connor all nine were federal appeals court judges. that's a very narrow perspective. four law professors up there -- >> narrow in what sense? you think you want knowledge of the law as predicate of being on the court. the law.usly, you want to know books.han having read the sandra day o'connor was a former state senator. if she could say to her colleagues you think raising money in a political campaign is about abstraction, like money equals speech. this is what a campaign contributor thinks when he or

she gives money. >> that would be a valuable >> that would be extremely valuable. >> go to the pole at the other end of this. why not have nonlawyers on the court. >> a long history -- >> why not go to a court that & is all regular folks. [inaudible, multiple people speaking] >> i don't know if we need to go all the way to nonlawyers. robert jackson, who was one of the greatest justices ever, served in the 1940s and '50s is the last justice that didn't go to law school. he clerked for a lawyer. that is how most people would become lawyers. law school was a novelty. i'm perfectly happy to have lawyers. lawyers of more diverse backgrounds is good. >> what about the idea of appointing justices for life has gone off the rail? you heard in the republican primary, rick perry, governor of texas among others who said

an unelected judiciary is part of the problems of this world. >> i'm glad they're unelected. i think the life tenure part is a problem. >> the constitution was written in the 18th century when people were, to be honest, expected to die in their 50s. >> we were still using leaches. >> life expectancy was dramatically different. the idea of 30-year tenure on the supreme court which is now the rule, was unthinkable. the problem is -- it is a problem and a good thing, it is hard to amend the constitution, which is what it would take. a wonderful idea that a couple of law professors are circulati >> the good kind -- >> the good kind. i don't object to ideas. the 18 years on the supreme court staggered every two years. every president got two -- >> strikes me -- >> very reasonable idea.

>> no president gets to pack. >> exactly, if you are elected to two terms, four justices, great idea, never gonna happen. >> because? >> because it is hard to amend the constitution. and there is not the kind of political constituency that would -- that mobilized for such a thing that you would -- you can amend the constitution. you think it is a good idea to get rid of terms. >> the process. >> 3/4 of the state legislature, the house and the senate. >> especially given the toxicity of politics today, what a disaster it would be to martial people. >> it would turn into other issues would get attached to it. that is why, i think life tenure as an idea isn't perfect. if it is easy to amend the constitution, you can imagine the garbage. balanced budgets, flag burns.

>> let me ask you the question about obama that i asked about romney. say obama had the opportunity to appoint sotomayor and cagan. >> elena kagan was my classmate. >> good decision, bad decision. >> they're good decisions. one of the myths about supreme court justices is that presidents are surprised that the justices turn out to be different than they expect. >> david souter is even the example, right? >> he wasn't that different from how he turned out. look at all nine justices on the court, they're all -- >> plain. >> what you expect. sotomayor and kagan are moderate to liberal democrats as advertised. >> george h. bush appointing souter -- >> he replaced william

brannen, but he was -- the only choice for that slot. >> george herbert walker bush didn't care that much about the supreme court. that was not his issue. the souter seat came up when the berlin wall was coming down. the following year he nominated thomas. >> he didn't say i will nominate someone that was a moderate swing vote. the conservatives thought they were getting one of their own. >> souter's decision was clear. if you go to ginsburg, sotomayor, kagan, they're as promised. >> who would obama appoint. >> i think did you val patrick is a -- duval patrick.

janet napolitano, former governor of arizona. >> the last would be probably last controversial of the three, janet napolitano because republicans have had it in for her -- >> after the speech at the convention. >> clear partisan. that would be pretty controversial. if obama goes the judge route. i think goodwin lou. >> he was filibustered. it is different to filibuster someone for thh supreme court. you really have to talk. the way the senate works, i mean, it is so completely dysfunctional is that a senator who objects to who is going on said i'm going to filibuster and they just simply give up. a supreme court is such a high-profile kind of vote that

the senate would simply wait them out. >> the old days of reading from the phone book to stall. >> well, they would have to do that. i'm not sure they could sustain. >> the senate regardless of the president, the senate that is likely to be in next session is going to be divided. >> quite divided, as it has been the last two years. >> the last line of your book, i will try to remembbr. the whole thing is great. the last line stayed with me. inevitably inveriably, the constitution lives. >> yes. >> i walked away hopeful. that everything that has been pplarizing for the country, that somehow the court is not

the constitution's interpretation will always change, depending on who is filling those judgeships. >> do you think people know ttat? i don't know that people -- maybe less so than other campaigns, although i may not be remembering prior campaigns. the question of the role oo the presideet in appointing justices to the court and danger of letting the other guy win hasn't come up terribly much. continuing obsessions in covering politics in the law. why the supreme court is not a big enough issue. i do what i can. about it. whole damn book >> arguably, you wrote two. >> it's not like i'm not trying. >> did you think obama knew it would be this close, this

number of latinos, women and young people might have had a passing reason -- >> i have asked political professionals about this, why don't you talk about the court? the answer i get -- interestingly from the left and the right, democrats and republicans is the people who really care about roe v. wade being overturned will vote republican anyway. thh people that care about roe v. wade being upheld will vote democrat anyway. the swing line don't have that voice -- obama started talking a lot about planned parenthood and abortion. >> he did. the implication, ii not the direct statement attached to that, his stuff matters, if you lee the other guy win, this could go away. >> right. >> we've got about five minutes, i want to ask you,

away from this book, you twoshg for the new yorker,cnn, in your capacity, you are doing serious journalism. this is a rare thing these days that you have been able to carve out a life for yourself to do this. it is not impossible to do it, but harder than it has ever been in our lifetime before. talk about the state of journalism and how you view it. i think you see the possibility of just doing good work and letting the chips fall. >> well, you know, it is a paradoxical moment in terms of journalism now. i think, the demand for journalism has never been greater. the amount of journalism people receive in the course of a day has never been more pimely, more extensive. >> right. >> the difficulty is the economic model has disintegrated. you know, newspapers made a tragic error, which i can't claim that i would have done

differently. basically, they said when the internet came in, we will give it away for free and figure out how later to make money off of it. they gave it away for free and persuaded to everyone that internet is free. >> no putting the toothpaste back. >> only "the new york times" could get away with charges. >> they don't have the & penetration -- >> it a ggeat newspaper. it is one newspaper. it's a big country. >> yeah. >> so i am fortunate to work for two entities, cnn and the new yorker that do good journalism but also make money. the internet has, you know, disaggregated everything soo that the number of places where you can actually make money and do good journalism has shrunk. i don't have the answer to that. i worry about that. but i am very aware you have to be interesting, you have to be entertaining.

we are not -- we can't be charity cases. we can't be homework. it has to be fun, entertainmmnt, important to read. >> even if it is serious? >> even if it is serious. >> right. >> i consiier that a challenge in a good way. the supreme court can be dry and boring. i consider it my mission to make it interesting. so far, so good. >> stuff like this happens or the affirmative action case distraction. >> not every day. >> i'm hopeful. >> what is your next book? >> i don't know. >> do you want suggestions? >> please. >> about the court? >> i have done back-to-backk books about the court. i want to do something else. i don't think it is out of the question to return to the court later. the oath was 2007. -- the oath was 2012. i want to take a bigger break

and do something else. >> what else is interesting you now from a subject subject? what will you be talking about in a year assyou look out? >> you know, i love politics. i still love a good crime story. i'm ever-aware that, you know -- >> you have done really great. for the legal and political work -- >> you know, i made my career on the o.j. case. let's not mince words. i got to tv because of j.o. i wrote my best-selling book because of o.j. that is a part of my life, you know, that is -- i recognize. i could see doing -- you know, what i like is a -- a journalistic mentor of mine, who i can't remember what the subject -- what we were he said to me, that's a subject, not a story. i like to write stories. >> that is a distinction a lot of people fail to make.

>> right. a subject, not a story. the supreme court is the subject. but the book is the story. i want to find something -- whatever else, whatever i do, i want it to be a story. >> again, the decision on the affordable care act gave you the narrative pivot point. >> for a story. >> right. >> for a story. >> the good thing about the court is it doesn't go away. >> they may go into hiatus, but they come back in the fall. it is nice to see you. i'm glad the book is a success as well. >> not as glad as i am. >> bet you are very happy. have you back again, whatever the next book is. >> we'd love to have you join us in the studio, visit our website at klru.org/overheard to find interviews, archive of past episodes. >> this is an idealogical driven court, the five conservatives really believe that money equals speech. and if you believe in that

metaphor, if you really believe that money is speech, the regulation of money is a violation of the first amendment. and this is why they are striking down rule after rule. >> funding for overheard with evan smith is provided in part by the mattsson mchale foundation in support of public television. also by mfi foundation, improving the quality of life within our community. and from the texas board of legal specialization, board-certified attorneys in your community. experienced, respected and tested. also by hillco partners. texas government affairs consultancy and global health care consulting business unit, hillco health and by the alice cleburg reynolds

>> hello, i'm llewellyn king, the host of "white house chronicle," which is coming right up. my first, a few thoughts of own. i had a dispute with an airline recently. one has disputes now adays with airlines, by the mere act of traveling it seems. i had to change the ticket and they wanted more for the changed ticket than the original ticket.

well, i didn't like this, i wrote something about it. the public relations people from the airline called me because it had been published in the newspaper, and said you got it all wrong. you signed a contract with us. no i didn't, i bought a ticket. that is not signing a contract. a contract involves two people agreeing on some thing, all i wanted was a little transportation, i wanted a ticket. a willing buyer and a willing seller, the seller has different agenda. i don't think that's right. up ve a great show coming for you today with some of my favorite people to comment on these extraordinary times in which we live. we'll be right back. >> "white house chronicle" is produced in collaboration with whut, howard university television. and now your program hosts, nationally syndicated columnist

llewellyn king and co-host linda asparello. >> hello again and thank you for coming on. when guests to this program come to washington they stay at the american guest house, a very comfortable place somewhere between a club and a hotel. ore like a club and well located. i use it myself. i do recommend it as an accommodation in washington. i promised you great people on this program today, and here they are. linda gasparello, co-host of this program. and i'm very glad to see back at the table, the distinguished author, journalist, former "new york times"man, former bureau chief of the "new york times" and the author of several remarkable books. i first became aware of you when wrote that great book on russia,

when i first went there. you're also the author of a very significant book which we talked about on the program recently, "who stole the american dream." and we have had more comments on that particular interview than any we've done in many years. people are very concerned and they're very, very grateful about what has happened to this country. why are the rich getting richer, the poor getting poorer and the middle getting skeezeder. if you squeezeder. > well, you can. >> a former man on the hill, and who was the other distinguished -- >> i used to work were senator warn ruddman. >> so you've been in the front any times. i'm so glad --

[laughter] don't worry, you can keep your clothes on. except you, charlie. charlie allison of the philadelphia tribune, also of sirius exm radio where we sometimes perform together. lovely to have you on the broadcast. you know everything, i mean you must, you worked for the "new york times" once. what do you make of what's happened? are we going to be able to get out of this slippery slope that has led to the shutdown of the government of name-kaling on a scale that i don't think -- >> well, i think it's baked in the conflict that we have between the congress, particularly between the tea party faction and the house and the president and the democrats, i think is baked into our system now by gerrymandering which has created a whole lot of safe districts for people who