the fifth to decide in the case that would challenge a decision the supreme court made when justice o'connor was on the court. tavis: let me get more into the case. we will expand from there. the state of texas has a 10% rule. i will let you explain what that is. i recall reading a piece you wrote applauding this 10% rule in the state of texas. explain what that is and why these women were not covered under that rule if they were talented to be admitted in the first place. >> the 10% rule was a response to another case challenging the use of diversity in a loss ". it shifted the understanding of merit away from breaking people based on their s.a.t. and instead used to their high school gpa. anyone in the top 10% of their graduating class in high school, whether an independent school or public, is eligible to one of the two flagship schools. as a result, the university was able to maintain more diversity than without the plan. it was still not perversity that insured that blacks and latinos would be comfortable on campus. there were many class's in which there were no black students or only o

justice o'connor was on the committee and she told the story and i am not going to mention the school to save them but upperclassmen at one of the military academies were discussing the three branches of government with justice o'connor. she asked some questions and they could not answer them. upper castes -- upperclassman, top cream of the crop. one of them was trying to reinstitute social studies and we do not talk about these things. this country was not built on the same blood or religion. we are not united by -- we are united by ideals and ideas. if people do not understand them, know their responsibility in keeping them alive, if we do not pass and assimilate all the immigrants come others, into these ideals, they die. we cannot sustain them. every citizen in this country, jefferson believed would step up to the plate. adams, on the other hand said there has never been a democracy that did not commit suicide. and he thought we would end up with that aristocracy and the people would willingly abdicate their role. tavis: scary come in 2012, that is very scary. i want to ask, what

justice sandra day o'connor wrote the majority opinion said this is a tough issue but we decided and as far as we are concerned it is resolved for the next 25 years. we hope that will not be necessary. we are finished. mimas is not that good but to nine years later refined the court has undertaken affirmative-action and admissions that is the case argued early next fall and decided sometimes bring of 2013. let's assume five justices some who were not on the court who were not happy without outcome had decided they would get their hands back on it. the threat to this something that can unsettle the has been unsettled up until now. that is the power the koran has to issue setter framed as legal constitutional issues. the court's agenda setting function. one thing that is intriguing over the years, the court and had to they know what the country once common need? what are the facts at their command? favor leed lives for not as isolated as people assume. they drive their own cars cars, upper-middle-class daily lives as many others. but there some isolated. the court cannot send fact find

and, you know, when i first justice o'connor's voice on the bench back in 1981 when president reagannamed her the first woman to be on the court, it was just a startling thing to see sandra o'connor sitting there. it was maybe just a year before her nomination that there had been a broadway play, maybe some of you remember it, first monday in october that posited a female supreme court justice as a joke. the play was a comedy because people thought, well, that's never going to happen. and, you know, now as they say it's the new normal. so we've seen all kinds of biographical changes over time and some of this, of course, relates to the confirmation process, and i want to say a little bit about that. it's almost a truism to talk about the confirmation mess and the breakdown of the confirmation process, and i'm sure many of you have watched at least snippets of recent supreme court confirmation hearings. and it's kind of a dispiriting experience where senators ask these kind of canned questions, and they don't really expect to get -- i think they'd be shocked if they really got substan

there was a period there with chief justice rehnquist and justice o'connor when we had gone, we had a long run together and you get comfortable with that and then it changes. and now it's changing again. >> it's a new court. when i was trying jury cases, usually 12, if a juror had to be replaced because one was ill or something, it was just a different dynamic. it was a different jury. the same way here, this will be a very different court. and it's stressful for us because we so admire our colleagues, wonder oh, will it ever be the same? i have deteriorate admiration for the system. the system works. >> i think it's healthy for the court to have members with different backgrounds. i saw a television program recently when somebody said there should always be someone who had served in the armed forces on the court. i think there should always be someone who has had practical experience in litigation and i think experience in other branches of the government such as the legislatures would be very, very helpful. >> i think that the experiences that i have brought to the job are going to

coercion test or -- >> here the coercion test as it's been discussed i think, for example, in justice o'connor's dissent in dole and some of the literature does agreet federalism concerns in the sense of the federal government using federal funding in one area to try to get states to act in an area where the federal government may not have article i authority, but as your honor suggested earlier, this is a situation while it is certainly true that the federal government couldn't require the states as the chief justice indicated to carry out this program, the federal government could expand medicare and do it -- >> but you agree there still is inhere inherent, implicit in the idea of ferlism, necessary for the idea of federalism that there be a clear line of accountability so the citizen knows it's the federal or the state government who should be held responsible for their program. >> certainly, but i think the problem -- >> and does coercion relate to that or is that -- >> yes -- >> -- is that a sar tin. >> i think it relates to it in the opposite way. i think their argument is it su degree of

>> you know, here, the coercion test, as it's been discussed, i think, for example, in justice o'connor's dissent in dole and in some of the other literature, does address federalism concerns in the sense of the federal government using federal funding in one area to try to get states to act in an area where the federal government may not have article i authority. >> yes. >> but, as your honor suggested earlier, this is a situation in which, while it is certainly true that the federal government couldn't require the states, as the chief justice indicated, to carry out this program, the federal government could, as your honor suggested, expand medicare and do it itself. >> but do you agree that there still is inherent and implicit in the idea of federalism, necessary for the idea of federalism, that there be a clear line of accountability so the citizen knows that it's the federal or the state government who should be held responsible for their program? >> certainly, but i think the problem here is - >> and does coercion relate to that, or is that a separate - >> yes, but i think - >> -- i

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

>> you know, here, the coercion test, as it's been discussed, i think, for example, in justice o'connor's dissent in dole and in some of the other literature, does address federalism concerns in the sense of the federal government using federal funding in one area to try to get states to act in an area where the federal government may not have article i authority. >> yes. >> but, as your honor suggested earlier, this is a situation in which, while it is certainly true that the federal government couldn't require the states, as the chief justice indicated, to carry out this program, the federal government could, as your honor suggested, expand medicare and do it itself. >> but do you agree that there still is inherent and implicit in the idea of federalism, necessary for the idea of federalism, that there be a clear line of accountability so the citizen knows that it's the federal or the state government who should be held responsible for their program? >> certainly, but i think the problem here is - >> and does coercion relate to that, or is that a separate - >> yes, but i think - >> -- i

very intelligent and they bring a distinctive judicial philosophy that's very different from justice o'connor's you wrote a book about the justices of the supreme court. how influenced are they by public opinion as opposed to the law, shall we say, or the various rulings and precedents? >> i don't think they -- they are influenced by the people chanting out in front of the supreme court, but it's also important to remember they have judicial philosophies. justice ginsburg, ruth bader ginsburg is a liberal democrat. that's how she sees the constitution. antonin scalia is a conservative republican. that's how he sees the constitution and that doesn't make one right or wrong, but it certainly makes them very different. they are going to look at this case differently as a result. so it's not a question of sort of shifting opinion because of politics, it's their politics that leads them to view the constitution in different ways and they are very likely to see this case in different ways. >> very quickly because we're out of time, jeff, this is the case where we have four conservative justices and f

the most important would be that justice alito has replaced justice o'connor. to the hughes court. f justice hughes was a brilliant lawyer and had to deal with some very broad economic and social legislation from the new deal. there may be perils with what happens in 2012 and what happened during the 1930's when chief justice hughes was presiding. host: some have said this could be a defining legacy for the chief justice. guest: this is the most important challenge to broadbased economic legislation in 75 years, over 75 years since chief justice hughes was presiding. in the mid 1930's, the court first struck down broad base legislation and found a constitutional. that legacy continues -- has continued for the next 75 years. chief justice roberts is facing a similar challenge that chief justice hughes did in 1935, 1936, 1937. host: what impact could this have on the roberts court? guest: this will be a defining moments, to be sure. i think the court realizes the gravity. they are giving this three days, which is an eternity. justice roberts is an interesting person to watch. many of

to begin the task or is that it percentage -- >> it has been discussed i think for example justice o'connor's literature does address the concerns in the sense of the federal government using federal funding in one area to try to get the state's to act in the area the federal government may not. but as your honor suggested earlier, this is a situation in which while this troop the federal government couldn't require the states, the chief justice indicated to carry out the program, the federal government could expand medicare -- >> it is inherent and implicit in the idea of federalism necessary for the idea of federalism that there rhode be a clear line of accountability for the citizen knows it is the federal or the state government that should be held responsible for the programs. islamic certainly the problem -- >> does relate to that? is that a separate -- >> i think it relates to it in the opposite way that my friend would like to in that i think their argument is that would suggest to such a high degree of the state to withdraw from the program that is antalya will trees and that is wher

what changed was justice o'connor retired, justice toledo -- justice alito joined the corps. is a narrowing of in 2003 been defined as corruption, meeting under access and influence as well as actual quid pro quo. that's been narrowed as allen is indicated but it's a really pretty -- pretty recent development. >> i completely agree that our democratic system is premised on individuals trying to influence other individuals to push policy in some direction. and it clear, we will always be probably more willing to listen to our friends that our enemies. i do think that there's a huge difference when you're talking about particularly a for-profit corporation spending money to influence election results. because the for-profit corporation is extremely different than you and i. you and i very complex creatures. with all sorts of motivation. we also have kind of larger senses wanting to make our community and the country a better place. a for-profit corporation, i mean, by law it has one goal, and that is to make money. that's not a bad thing, making money is a great thing and it's

chief justice rehnquist and sandra day o'connor or even scalia and kennedy, lito not quite as clear,'t seem as concerned about the scope of the federal power. >> it seems to me that alito has never overturned a law. >> he's very pro federal government. i think alito may be the strongest justice in the room in terms of going with the federal position. for me it comes down to whether they want to ep teach a lesson about conservatism in the court or in the government as a whole. they will try to restrain this and say that the government is getting out of control. it looks like a montrocity to us but god speed we will go through this. >> this three days of arguments, the supreme court that roberts, in particular, is concerned about protecting the reputation of the supreme court. particularly this is a message to the conservatives not happy with the mandate saying, look, they are allowed to do this. they want to make sure everyone realizes they had their day in court. >> everyone is getting a chance to have their arguments heard. there are more than 125 briefs filed in the case. it would

something that justice o'connor would really love.ad a mountain range of right and -- right in the middle. shapes can be deceiving. particularly in texas, but elsewhere the could be potential discrimination. >> this is the thing about partisan gerrymandering. the last time the supreme court looked at the issue in debt was the 2000 redistricting in pennsylvania where the republicans were in control the state was losing three seats. they managed to pare all democrats and try to get some additional seats for the republicans. they did not quite succeed in getting as many as they hoped for. the supreme court split into three groups. four of the justices led by justice scalia said it may violate the constitution and, therefore, there may be an argument. four of the justices thought at that claims of political gerrymandering were not sufficient. the remedy for political gerrymandering is to "hear the pungency of the people's represent his." at it is unlikely that the people's's representatives are capable of doing it this way. those four jus

hope of justice and that the rumors are true that at the end of the day tomorrow justice scalia will break sandra day o'connor'sich. we want to hear from you. as you can see we have been joined by michelle obama, and of course you have met the president before. but someone is also here in our war room to receive and help decorate. so i hope you'll consider mailing in stuff so your war room is chalk full of good chschkis. i want to thank you all for joining us here in the war room. there is lots to see on the campaign trail tomorrow. we have some great guests

supreme court justice sandra day o'connor and judge alex kacynszy court of appeals from the ninth circuit. she received j.d. from the university of california school of law and master of science from the columbia university school of journalism. she earned her undergraduate degree from the university of california at berkeley. nobody's perfect. in addition to her duties as an active u.s. circuit judge, the judge is currently an appointed member of the judicial conference of the u.s. advisory committee on bankruptcy rules. most interestingly, and this is something the panelist debater should keep in mind if case they run over, prior to her career, judge

swiftly and appropriately through the justice system and that a final determination in this case is reached. (applause). >> in the interim, police captain scott o'connor will assume the co-duties running the sanford police department while we look for an interim police chief. this is a very difficult time for this community and a difficult time for our nation. this incident has gathered international attention. i ask of the citizens, both of sanford and of the country, understand that the judicial process has been put in place and what the city of sanford wants more than anything else for the trayvon martin family, is justice. it has been turned over to the state's attorney office, the governor has afforded law enforcement to assist and congresswoman brown joined and the united states department of justice so we are looking for a complete and thorough review and that justice will reveil, we will get a schedule of regularly scheduled press conferences. >>reporter: what do you mean temporarily removed from office? >>shepard: we hoped to hear more. the police chief at the center of the controversy has stepped down a month after this happened. and they ha

swiftly and appropriately through the justice system and that a final determination in this case is reached. thank you. >> in the interim, police captain scott o'connorce department while we look for an interim police chief. this is a very difficult time for this community. it is a very difficult time for our nation. this incident has gathered international attention. i ask that the citizens both of sanford and of the country understand that the judicial process is put in place and what the city of sanford wants more than anything else for the trayvon martin family is justice. it has been turned over to the state attorney's office, the governor has asked the florida department of law enforcement to assist, and congress woman brown having joined gotten the united states department of justice part of this process, so we are looking for a complete, thorough review and that justice will prevail. at this point i would like to thank you. we'll be getting a schedule of regular press conference. thank you. >> what do you mean temporarily remove himself? >> reporters are shouting and trying to get a little bit more clarity. they're not answering. certainly ne

o'connor said you have to be able to count to five. prognostication based on oral arguments is not a science. the number five sounded skeptical of the government's argument beginning with the justice who may be key, anthony kennedy. >> when you were changing the relation in a unique way, do you not have a heavy burden of justification to show authorization under the constitution? >> it was clear from the out set the other two who might have a broader power, the justices were not convinced with an analogy of a slippery slope analogy. if congress can make everybody buy insurance, is there an end to what else it could do? >> can the government require you to buy a cell phone because that facilitates responding when you need emergency services. >> everyone has to buy food and therefore everyone is in the market and you can make people buy broccoli. >> solicitor general arguing for the government was struggling and some of the more liberal justices jumped in and tried to bail them out. >> it's different because of the nature of the health care service. you are entitled to health care when you go to an emergency room, when you go to a doctor, even if you can't pay for it. >> the obama a