justice scalia commented that there was no justice with which to disagree more often than justice brennan. justice scalia considered him his best friend at that time. he got the feeling was reciprocated. >> this is tradition by justice o'connor when she was on the court. >> we have this every day. you should come to lunch. this is one the best things i did. it is hard to be angry and bitter at someone and break bread and look them in the eye. it is a fun lunch. very little work is done there. it is just nine people, a people, and webber shows up, having a wonderful lunch together. >> i try not to miss a post argument let's. you never know what they may be talking about. >> most justices are there. my colleagues to go to the opera will talk about the opera. some will talk about the baseball game. some will talk about a good book they read. these are the kinds of things everybody with talk about. >> of the main room is a smaller dining room for small functions. this is due to a sculpture that was placed there in the mid- 19th-70's. he decided he wanted to make this the theme of the room. he

they have to seek justice. the inintegrity of our criminal justice system relies heavily on prosecutors. on the fact that they want to make sure all parties, the state, the defendant, witnesses, victims, whatever else have to be treated fairly. now, much of the country is focused on the killing last month of trayvon martin in florida. it's a matter in which the police decided not to bring charges. local prosecutor has since recused himself while a special state prosecutor re-evaluates the case. last week, the civil rights division of the u.s. department of justice naubsed it had begun an investigation into this matter. i share the president's heartfelt feelings and sense there needs to be a thor role investigation to get to the truth, which is what the american people want, the truth. last week, i chaired a judiciary committee hearing that focused on one pivotal component that spoishts the integrity of our system and importance of retaining critical evidence like dna that can be used to convict the guilty and e

who are these justices? it is interest dain to look back over time to see how expectations have changed. among the justices were framers of the constitution, over time that continued. even as recently as of warren court who was never a judge and then 1948 his court was filled with former cabinet officers. and robert jackson, it seems strange to us. since elena kagan came on the court it is no longer true but levying up to the nomination we had a supreme court all of whose members were a federal appeals court judge. the framers would find that remarkable pace of the supreme court drawn from the heart of political life. last that held herself out was justice o'connor who was majority leader of that arizona state senate. heard jurisprudence was unique on the court at that time and it had to do with a pragmatic cents of getting down to it to get things done she was nurtured by the fact she was an elected office holder. there is a change in religion. it is quite remarkable when justice stevens retired, we now hav

sometimes a justice is elevated, like justice rehnquist.the case of roberts and chief justice use, they are appointed by the president. caller: good morning. everybody seems to be missing the point here. i have to buy auto insurance because i choose to drive a vehicle however, i did not choose to be born. how can i be taxed, penalized, or otherwise simply because i exist? i had no twice in the matter -- no choice in the matter. it is just not right. guest: the interesting thing about this debate is the disconnect between the arguments you are hearing outside the courts and the arguments you will hear within it. this case has less to do with the merits of national health care reform as it does with points of arcane and technical questions, such as whether this is at tax or penalty. the 800-pound gorilla in the closet is the question of federalism. it is a question not about the end of legislation, but the means. what is being argued is that the state's reserve the rights to make the decisions, that the battle government has intruded upon the

who are these justices? and it's interesting to look back over time and see how our expectations of the kinds of people who fill the seats on the supreme court have changed. back in the early days, of course, these were among the justices were framers of the constitution, leaders of the new country. over time that continued for quite a while. i mean, for instance, even as recently as the warren court earl warren himself had never been a judge. he was three-time governor of california. he had run for national office for vice president on the republican ticket in 1948. his court was filled with former senators, former cabinet officers, former attorney general robert jackson and so on. you know, and that seems strange to us today because today for the -- well, since elena kagan came on the court that's no longer true, but leading right up to elena kagan's nomination for the first time in american history we had a supreme court all of whose members had as the most recent line on their resuÉe having been a federa

there's no question that the sub text of what justice kennedy asked and justice alito and justice roberts. isn't there something different about what's going on here? are not you basically forcing individuals into the stream of commerce for the purpose of regulating them? and whether they said that outright as some justices did, or whether the questions indicated that's how they were at the case. that's lifted right out of the brief of people opposing this law. that's how they've framed the issue. if you look at the oral arguments and the question that was asked, it does seem the justices are buying that view of it. the opponents of the law, the supporters were saying, look, we are regulating the health care economy. there's nothing to see here. the federal government clearly has the power to regulate things that are substantially affecting interstate commerce. this isn't a difficult case. what was clear from the questions today was that the justices don't necessarily see it that way. what justice kennedy is saying, there is something extraordinary about this. there is something almost un

justice alito, justice scalia, were skeptical.we know his position on the issue. the only conservative justice who looked like he might uphold the law was chief justice roberts who asked hard questions of both sides. all four liberal justices tried as hard as they could to make the arguments in favor of the law, but they were -- they did not meet with their success with their colleagues. most surprising to me perhaps, donald ver rily, the solicitor general, did a simply awful job defending the law. he was nervous, he was not well spoken. the argument got off to a very bad start for the administration. and it was really the liberal justice who is carried the argument much more than the lawyer. the argument that seemed to give justice kennedy the most trouble and he is of course as we know the swing vote in so many issues, justice kennedy practically his first question out of the box was, we know that congress can regulate commerce. but can congress create commerce? can -- and donald verilli had difficult answering that, he said no,

justice, justice anthony kennedy. justice kennedy today asking some key questions. >> can you create commerce in order to regulate it? >> when you are changing the relation of the individual to the government in this -- what we can stipulate is, i think a unique way, do you not have a heavy burden of justification to show authorization under the constitution? >> the reason this is concerning is because it requires the individual to do an affirmative act. in the law of torts, our tradirks our law has been that you don't have the duty tow rescue someone if that person's in danger. and here the government is saying that the federal government has a duty tow tell the individual citizen that it must act. and that is different from what we have in previous cases. that changes the relationship of the federal government to the individual in a very fundamental way. >> greta: shannon bream was inside the courtroom. she joins us from washington. shannon, what was it like? >> reporter: it was very, very rapid fire, for two hours

i think you saw in the questions from all of the justices and the fact that argument, that the justices actually gave both sides a little extra time. you can see they were certainly taking this case and this challenge seriously. >> are you satisfied with you and the -- just on the individual mandate and the government prevailed on the others? what's the impact of just winning on the individual mandate question? >> well, obviously, we are interested in winning, getting complete relief. any litigant, if you take the traub litigate to the supreme court you're looking for complete relief at the end of the day. that said, even if the court did nothing more than strike down the individual mandate it would be a significant victory a landmark decision of the supreme court. i think it would justify even the long lines out here if the court did that. and there were many people that at the beginning of this case suggested that the challenge of the law was frivolous. i'm not sure. there's obviously naysayers in every group. challenge this frivolous after six-plus hours of argument and all the court

justice ginsberg and justice kagan. don't pay, you're active in the health insurance. if you get hit be a car you're going to be taken to the hospital and the tax paris are going to have to pay for your health care. it's an activity even if it's a nonact. chief justice roberts, who is known to be a key part of the conservative wing, he did seem a little bit more receptive to kennedy than the argument that look, this is a national problem, that the absence of health insurance for 40 million people is a problem that the federal government has reason to address. that was a point he made in some question, but he, too, seemed skeptical of the obama administration position at other times, arguing that this was just an excessive government grab of power under the constitution. >> jeff toobin, i'm hanging on your every word, but i've got to ask you to put on your reporter hat. i hear all this shouting, can you just set the scene for me what we're not seeing? are these still scores of protesters? >> you know, i think you're hear

he could appoint one justice for every justice over 70 years old. six of the justices were over 70 years old including chief justice use. [laughter] nobody was fooled and his proposal. the attempt to undercut the conservative court to try to restore the new deal constitutionally. hughes said nothing publicly was furious. asking it -- ast by the senate judiciary committee and he would write a letter, i he did. it was completely up to date and if there were additional justices if it came at 15 it would slow down the work rather than speeded up because more conferences, all opinions, more time. he thought it was a good idea. the plan was resoundingly defeated. and then to say he was the best politician in the country. the very effective the did that. 1937 through 1940 naboth continued to the. roosevelt was defeated hughes was inundated with appointees. roosevelt appointed five members in three years. he was surrounded by a new appointees but yet he himself continue to the the court. frankfurter, who was the confidante of justice stone during the worst

>> when you say "independent," you mean outside of the department of justice? because the department of justice has an office, the professional responsibility advisory office known as preo which is there to entertain questions about the application of the disciplinary rules of the bar to the conduct of the prosecutors. as a matter of fact. >> in other words, if a prosecutor had a question about a brady matter, is there either that board or -- i don't think -- i guess you can't go to the judge? >> you can. >> can you go to the judge? >> you can. if i had an issue where i, again, a federal prosecutor and i said to myself, hmm, i've got this piece of evidence here. i'm not so sure whether i have to disclose this. well, first of all, i was taught when i was a young assistant u.s. attorney, if i had to think about that for more than ten seconds, turn it over. but if i didn't, i could go to the trial judge ex parte, make a -- >> you can do an ex parte -- >> make a submission to the judge in camera, say this is what i have. i don't know whether i'm obligated to turn t

i disagree, justice scalia. that's just an assumption, and if it proves to be wrong, then congress has time to recalibrate. and beyond that, i do think if -- i just want to go back to the -- the other part of your honor's point -- that with respect to the relationship between medicaid and the -- the act, and particularly the minimum coverage provision, my -- my friend mr. clement has suggested that you can infer coercion because, with respect to the population to which the provision applies, if there's no medicaid, there's no other way for them to satisfy the requirement. i want to work through that for a minute if i may, because it's just incorrect. first of all, with respect to anybody at 100% of the poverty line or above, there is an alternative in the statute. it's the exchanges with tax credits and with subsidies to insurance companies. so with respect to that, the part of the population at 100% of poverty to 133% of poverty, the -the statute actually has an alternative for them. for people below 100% of po

is the commerce justice science subcommittee for appropriations. live coverage on c-span and the ranking republican kay bailey hutchison of texas. >>> good morning everyone. good morning everybody t. commerce justice appropriations subcommittee will come to order. this morning we -- this morning we welcome the attorney general of the united states, and as is the usual and customary way, senator hutch i son and i will make opening statements. we'll go to you, mr. attorney general, for yours, and you may summarize with unanimous consent that all statements be included in the record. senator shelby, our colleague and former ranking member on this subcommittee has a banking hearing with senator hutch i son's concurrence, we'll go right to senator shelby for the first question. does that sound okay? we'll observe senators in their order of arrival. we expect robust participation. we're going to strictly adhere to the five-minute rule. so having laid the groundwork, i just want to say good morning and welcome to our first cjs subcommittee hearing. the at

justice program. 'r

and so justice breyer, justice ginsburg, justice kagan, they seemed to pick up on the government's arguments and tried to press mr. clement and mr. carvin to respond to those arguments. >> ifill: but the chiefustice and juice keedy and justice scalia and the silent justice thomas seemed to be... >> they were much more aggress with the government. but that's almost understandable because the government is appealing a lower court decision that struck down the mandate. the government has in a sense the tougher argument to make. this is an unusual exercise of congress's power and so the government has to lay out the reasons for that power. and also the court was very interested in if this is okay you should the commerce clause, what are the limits? what stops congress from ordering... commanding that consumers or citizens purchase or do other things? >> ifill: it's also an argument in the court today about whether this is the job of the federal government, that it should be the job of the states. is there any record to show that states have been willing to step in this void that the government s

i challenged the department of justice and said now what? now that you know this has taken place, what can you do to make certain it's less likely in the future? d learned our lesson. pardon my skepticism. i'm n because of contest living that we will ever avoid the inclination oftt i was one ago, to do their -- to proceed to the outcome they're looking for. my question to you -- i have two. one relates to what senator franken asked you. if it happened in this case by the pros kurt was, in fact, illegal wasn't the commission of crime failing to disclose what should have been scloesed in evidence under the brady rule? secondly, if we are really serious about this, don't we have to go further in the department of justice of prosecutors across america? don't we have to enshrine on the law criminal defendant when it comes to this disclosure? a bill has been introduced by one of our colleagues. i'm not sure thatf you're aware of it. >> i am. >> she talks about exceptions when it comes to this disclosure relating to witness safety, national securit

justice program. they're right now about 1,600 prosecutors, 1,200 public defenders i believe in last fiscal year that received assistance under that program to help them pay off their student loans, et cetera. but this budget as i understand it as has been submitted does not have funding for that program this year. so i guess, my concern there would be that we want the best and the brightest out there trying cases, and on both sides. again, this is both defenders and prosecutors, and our criminal justice system, it's critical we have good representation on both sides. and i'm afraid that we're going to lose a lot of talent if we don't have a program like this, and i was wondering if you share that concern, and what you -- what steps you think we can do to try to keep the best and the brightest, you know, coming onboard? >> no. i do share that concern. we want the best and the brightest to come and take what are low-paying jobs on the prosecution side, on the defense side. these kids, these younger peo

>> it does, justice breyer. if congress were to enact laws like that, we -- >> so then -- >> i would defend them on a rational like that. i do think we are advancing a narrower. >> then the question is whether or not there are any limits on the commerce clause. can you identify for us some limits on the commerce clause. >> yes. the rational under the commerce clause would not justify forced purchases of commodities for the purpose of stimulating demand. it would not justify purchases of insurance for the purposes in situations in which insurance doesn't serve as the method of payment. >> why not? interstate commerce is affected isn't according to your view that the end of the analysis. >> n th when the difference between those situations and this situation is that in those situations, your honor, congress would be moving to create commerce. here congress is regulating existing commerce, economic activity that is already going on.

equal justice. "under lock" the meet -- needs the rule of law under the constitution. -- "under law" means the rule of law under the constitution. when i was leaving cuba, we were taken off the plane and held incommunicado in a private room. there were just locked rooms. you didn't know if you would ever see your family again. it only takes one night of that to change your life forever. in many ways, i believe that was the moment i decided to be a lawyer. i never wanted to feel so helpless again in my life. i also knew what was happening there was wrong and that somebody should care about it. if i ever had an opportunity to make a difference, i would do that. i believe that that moment is one that emphasized to me the importance of the rule of law and why we have to preserve our system of justice. most importantly, i remember that night because of a conversation i had with my grandfather. we have learned that the business he learned his whole life to establish was being taken over. what happens is t

chief justice -- >> but there's no coen about i related. i think the germaneness inquiry in dole gets there. we don't have that here. >> i know we don't have that here. how does germaneness get to -- >> because it gets to be harder to see -- >> that's germaneness -- >> -- what the connection is -- >> so it fails because it's not germane, but you're saying it would not fail because it's coercive. >> as i sa really trying to get at the same thiciffnt here. >> i know it's different here. i'm trying to understand if you accept the fact or regard it as a coercion limit or that once the federal government -- once you're taking federal government money, the federal government money can take it back, and that doesn't affect the voluntariness of you problem. we're assuming the federal government cannot do this, under the constitution it cannot do this, but if it gets the state to agree to it, well, then it can, and the concern is if you can say if you don't agree to this you lose all your money, whether that's really saying the limitation in the is

and many other e justice breyer. we'll hear his oral arguments from yesterday. >> you pointed out, and i agree with you on this, that the government set up these emergency room laws. the government set up medicaid. the government set up medicare. the government set up c.h.i.p. and there are 40 million people who don't have the private insurance. 's in that world the government has set up commerce. it's all over the united states. and in that world, of course, the decision by the 40 million not to buy the insurance affects that commerce and substantially so. so i thought the issue here is not whether it's a violation of some basic right or something to make people buy things they don't want, but simply whether people substantially t group of affect the interstate commerce that has been set up in part through these other programs? so that's the part of your argument i'm not hearing. >> that's justice breyer, and he's speaking to michael carvin, the attorney representing the nationalen businesses and jess, take us throu

i want to play a little bit of justice kennedy. here is justice kennedy.elieves it will come down to. let the viewers hear whether they find scepticism in this questioning. i think this is him questioning the government's lawyer. >> the reason this is concerning is because it requires the individual to do an affirmative act. in the law of torts our tradition and law has been you don't have the duty to rescue someone if that person is in danger, the blind man is walking in front of a car, do you not have a duty to stop him absent some relation between them. and there is severe moral criticism but that's generally the rule. here the government is saying that the federal government has a duty to tell the individual citizen that it must act. and that is different from what we have in previous statement. >> that changes the relationship of the federal government to the individual. in a fundamental way. >> i don't think so, justice kennedy, because it's predicated on the participation of these individuals in the market for healthcare services. megyn: for him it

anthony kennedy voting with more liberal justices but based on kong stock, justice roberts might be a possible vote and just the sculley and race will have a hard time getting around his ruling if you wants to be seen as respecting president and history of the constitution as he claims. with that i look forward to your comments and questions and thank you again for including me. [applause] >> thank you. i know there must be lots of questions in the audience while people get ready to do them. i want to ask michael quickly to outline what will happen if the mandate is up held, health care policy and economics and let's take the government's position on the mandate and guaranteed issue community rating struck down. what will be the policy and economic consequence really quickly? >> the policy consequences if only the mandate restrict down? if everything is upheld -- [talking over each other] >> this regulatory structure is a pretty rickety one to begin with even with the mandate in place. a lot of americans will save thousands of dollars per year by dropping health insurance coverage a

i disagree, justice scalia. that's just an assumption, and if it proves to be wrong, then congress has time to recalibrate. and beyond that, i do think if -- i just want to go back to the -- the other part of your honor's point -- that with respect to the relationship between medicaid and the -- the act, and particularly the minimum coverage provision, my -- my friend mr. clement has suggested that you can infer coercion because, with respect to the population to which the provision applies, if there's no medicaid, there's no other way for them to satisfy the requirement. i want to work through that for a minute if i may, because it's just incorrect. first of all, with respect to anybody at 100% of the poverty line or above, there is an alternative in the statute. it's the exchanges with tax credits and with subsidies to insurance companies. so with respect to that, the part of the population at 100% of poverty to 133% of poverty, the -the statute actually has an alternative for them. for people below 100% of po

the conservative justices and that key swing justice, anthony kennedy, expressed serious doubt about the law. justice kennedy, who often provides the decisive fifth vote, appeared troubled that congress for the first time was ordering americans to buy a product like insurance. >> and that is different from what we have in previous statements. that changes the relationship of the federal government to the individual, in a very fundamental way. report that's the issue at the heart of the case. the federal government's power in people's lives. the constitution gives congress specific limited powers, one being the authority to regulate commerce. opponents argue that doesn't give congress the power to create commerce by forcing people to buy health care. supporters say uninsured people already are consumers of health care who just leave hospitals and taxpayers stuck with their bills. the conservative justices and kennedy, a moderate, expressed concerns the law gave congress broad new powers to dictate behavior. chief justice roberts asked if congress could force people to buy insurance, s

i thought the chief justice seemed skeptical and justice thomas, who didn't say anything, obviously will say that the law is unconstitutional, so that leaves kennedy and in that clip you just played, he says, maybe the health care market is different from everything else. so the question is, will he see it that way because of this fact. if you go to buy a car and you don't have the money for it, it's not true that you get it anyway and then all the other people that have car insurance end up paying for your car. so the health care market is different. is it going to be constitutionally enough different for him, i think the key question. >> he did seem to focus on the cost shifting, the fact that a lot of people are going to get the benefits from the health care system without paying insurance in and that seemed to trouble him. >> there were so many arguments outside as well as inside that so much protesting, so much attention on this, does that matter now at this point? how much are legacies of the chief justice plaguing into this? how much are the outside dynamics playing into the rulin

chief justice. may it please the court. aid like to begin with the solicitor general's main premise which is that they can compel the purchases of health insurance in order to promote commerce in the health market because it will reduce uncompensated care. if you accept that argument, you have to fundamentally alter the text of the constitution and give congress plenary power. it simply doesn't matter whether or not this regulation will promote health care commerce by reducing uncompensated care. all that matters is whether the activity actually being regulated by the act negatively affects commerce or negatively affects commerce legislation so that it's within the commerce power. if you agree with us that this is -- that this exceeds commerce power the law doesn't somehow become redeemed because it has beneficial policy effects in the health care market. in other words, congress does not have the power to promote commerce. congress has the power to regulate commerce, and if the power exceeds permissible regulatory authorit

this was not victors justice per se. you can argue it was the justice of the strong over the weak at that point in history. but we could not simply impose -- we had to work it through an international system through the united nations through the security council and particularly in the case of rwanda, rwanda was a nonpermanent member on the security council in 1994. so the new government was actually at the negotiating table right across from me throughout all of these discussions. i had to negotiate with the rwandan government as to the composition of the international tribunal for rwanda. that wasn't the case for yugoslavia. they were not across the table from us. their conflict was raging at that point. it was a much more complex political dynamic that demanded at times compromise but also it demanded a sense of political will internationally to stand firm, to build institutions of high credibility and independence. and that created, you know, a long experience of negotiation and of -- of trying to corral the interna

back to a justice alito or nn said. this fundamentally changes the relationship between the people and their government. and that is why this case is so i don't know if there are time for any questions. >> actually, we are going to be at the florida house at 2:00 p.m. for media. general who are here. there's approximately 20 of us. you're welcome to come over key questions, even if you have individual questions or interview requests for specific t 2:00 p.m. >> just on the back side of the supreme court,he>> thank you. >> do you think there needs to be health care reform? >> urse. like all americans, i perceive that there are probliss unlike those who voted to pass this, i believe that theenties power to enact legislation, sweeping legislation deal with rnment. these issues are states. >> these, after all, states that and hospitals and clinics. regulate insurance companies and come up with a system of tort laws that determines how medical malpractice suits operate. regulation, f those drivers are not federal regulation.

a few months later justice kennedy came back, formed a, joined forces with justice o'connor and justiceut it mohr, on more solid ground than it had in theç past. >> it is getting dark, than thak you, good to have you on the program. >> thanks. >> rose: james baker is here, he is one of this country's most distinguished diplomats and public servants, servedç under three u.s. presidents and held some of the highest offices in american politics, include secretaries of state, secretary of the treasury and white house chief of staff and led campaigns with gerald formed, reagan and george h.w. bush over the course of five consecutive elections, perhaps he was closed to george bush 41 and their friendship stretches back to the 1960s when they started playing tennis the together and the elder bush called baker quote a man whom without i would not have become president of the united states. and a man to whom friendship means everything. and i am please to have jim baker back at this table. welcome. >> thank you, charlie. >> looking ahead to foreign policy, one thing we have talked about before

>> two responses, justice scalia. you can look at this court's cases on severability and they form you late this test differently. everyone of them talks about congressional intent. here's the other answer. >> that's true, but is it right? >> it is right here's how i would answer your question which is when congress includes the sever ability claus it's addressing it in the abstract. it doesn't say no matter which provisions you strike down we absolutely positively want what's left. >> right. the consequence of your proposition, would congress have enacted it without this provision, okay, that's the consequence, that would mean that if we struck down nothing in this legislation but the what's it called, the horn husker kickback, okay, we find that to violate the constitutional proskription of vinality. when we strike that down, it's clear that congress would not have passed it without that. it was -- the means of getting the last necessary vote in the senate. and you're telling us that the whole statute would fall bec

but i think based on comstock, chief justice roberts might be a possible vote and i think justice scalia and raich will have a very hard time getting around his ruling if he wants to be seen as respecting precedent and the text from history of the constitution, as he claims. so with that, i look forward to your comments and questions, and thank you agfo [ applause ] >> well, thank you. i know there must be lots of questions in the audience. while people get ready to do them, i just want to ask michael very quickly to outline what will happen if, a, the mandate is upheld, as a matter of health care policy and economics, and, b, if let's take the government's position on severalability, the mandate is struck down. what will be the policy and economic consequences? really quickly. >> the policy consequences if only the mandate were struck down? >> if the -- everything is upheld or -- >> the mandate is upheld. well, this regulatory structure is a pretty rickety one to begin with. each with the mandate in place, a lot of americans will be able to save thousands of dollars per year by dropping

one thing about that opinion by justice scalia. the opinion, which was expressly about the necessary and proper clause, was only about the word "necessary" in the necessary and proper clause. the issue was whether essential to a broader regulatory scheme would be interpreted in the same deferential way as the word "necessary" has been interpreted in the past by the supreme court, meaning congress basically has discretion when it chooses means amongst the various means that might be convenient to its end. and justice scalia basically adopted that approach. much to our disappointment. but here's what that opinion said not one word about. it said not one word about the word "proper" in the necessary and proper clause. the necessary and proper says the congress shall have the power to make laws which shab necessary and proper for its execution of foregoing powers. there's nothing in the case about proper. yet justice scalia himself said in the priest case to enforce local sheriffs to enforce-fed ral law, he said that was beyond the pow