and, in fact, to read the second clause as petitioners suggest just read it out of -- justice kagan,on what an employee could do in that circumstance is to say the policy doesn't treat similarly situated employees the same as me. it treats me worse. the comparators here were not at all congruous. the first set were individuals who were accommodated under the ada. the government realizes that they're not similar. >> that's where we disagree. because what this tells you is are. the comparators are any class you can come up with who is -- has the same disability and isn't pregnant. and then, the employer can come back and say, no we had a good reason to treat that class of employees differently. and if you buy that with respect to the gilbert distinction, i don't understand why you wouldn't buy it with respect to any other classification. >> because all the second clause is telling you, and congress was clear and this court was clear, that the pda of both clauses in its entirety were not intended in any way to depart from traditional title 7 principles. it was simply to correct the fact

justice kagan has been great. i want to remind folks that what should be coming from the floor are questions, questions and with a question mark sometimes the raising of a voice are typically shorter than the answers that you expect to hear from justice kagan. with that sort of reminder or warning, i don't know if we have someone at the top. i will say one of the things about this stage, there are bright lights. back row, all the way at the top. introduce yourselves. >> i'm a freshman. my question is, should, in your opinion, foreign or international decisions have bearing on any kind of rulings on the supreme court? should you cite these international decisions? >> this is the kind of -- this issue is a lot more heat than light. there are a lot of people who feel strongly about this and i don't understand why. sometimes everybody agrees that we should look to international law, foreign law, in deciding particular case. if you deciding case about a treaty, it's important to look to international law and to look to

. >> but you don't know -- i'd like just to go back on this very point what justice kagan said.las test, i think, should come in somewhere. that is the woman shows that i'm pregnant. i couldn't lift. i wasn't paid anything. and of the people who had comparable inabilities, were paid. so we get to was i qualified like they are? and now a distinction is being made. the employer says no, you're not. you didn't drive over the mountain pass or no you're not because you nodded off the job. and then we have to decide is that a pretext? is it legitimate? and were they giving it to everybody else and there are very few, it doesn't sound too legitimate. but that test must e must come in. >> it does. >> and so how does it? and does it matter if we put it under the first so called whatever, you know,intentional as opposed to desperate impact where we muck up the law? were we to say it goes in that part rather than the other part or both parts? >> i think if i can, this court has been clear that mcdonald douglas provides a mechanism for providing indetect evidence of desperate treatment of i

well as justice kagan said, why is it that my cannon has to fall. she's rare in this field for a federal judge to lift up. most of the time they talk about state judges as if we were from some foreign country. but justice kagan this morning said, why would it matter to anybody if i solicit money from my old law school. i think i know which one she had many mind. why would that really matter? the solicitor, hard pressed to tell her it was the same. they have the right to say no. it's compelled and affirmative. so the difference this morning that i think was recognized between not only lawyers and judges fween other office holders is pretty important, including the one that only the dimpblss between people like governors, senators members of the house of representatives is that we expect them to be instrumentalties of our witnesses. we think that they will do certain things that we believe represent good policy. >>> now, i think that the case law on this, one could pick out a piece or another piece and decide this case in either direction. it leads me

justice scalia and most recently with elena kagan. they know him.when i have conversations with them they will often refer to him by his first name. they pay attention when he speaks just like they pay attention to a lot of the regulars there and he has certainly -- he has been on 60 something arguments before the justices. he has different quirks of which watches the where the how he argues in this fascinating to watch them and how the respond. they respond to many of the former solicitors general just like seth waxman who was the solicitor general for bill clinton and has been no for george w. bush. >> host: does he play to the justices? >> guest: we all know justice kennedy who is often in the swing vote position and they know which justice might be the swing vote in that case whether it's same-sex marriage or if it's on a pension case. these lawyers know who they need to condense. >> host: you talk a little bit about this in "breaking in." how often can the justice have a personal relationship with the lawyers argued in front of them them? >> gu

just as kagan said, why is it -- why does my canon have to fall?s rare in this field, for a federal judge to lift up. what does this mean for us? mostly they talk about state judges as if we were from some foreign country. [ laughter ] but justice kagan this morning said, why would it matter to anybody if i solicit money from my old law school? i think i know which one she had in mind. why would that really matter? and of course, the petitioner hard pressed had to tell her that it was the same. but she was on a track that really mattered. there are some certain solicitations, if you, for example, solicit a federal employee for a federal official, the law compels you to speak it compels you to tell the federal employee that he or she has the right to say no. compelled to an affirmative act. the difference this morning that i think was recognized between the -- not only between lawyers and judges and other office holders is pretty important including the one that one of the differences between people like governors, senators members of the house of r

i think you do see in that kagan essay a nice template for how i -- a president who wants to act canuse the executive branch to do that. >> one of the reasons i begged elena to be my deputy was i was tired of lawyers at the agencies telling me no, and i figured let's get the smartest lawyer, put her to work, and we will roll them for a change. >> when you talk about the ergonomics debate, that was one of the last regulations i had to promulgate, right? i can remember talking with the president, with the white house team about, are we sure we want to do this at the end? this is going to be pretty controversial. you know who -- you know? it was really about stimulating that debate. we may not get to enforce it. we may not get to see it live to see the light of day, but we put the debate out there and now, do -- now you know the whole , conversation about ergonomics is a very different one in the workplace. >> i will ask you a last question. we are here because the miller center has done this incredible history of oral histories with officials when they are leaving office and they can s

>> i don't think so justice kagan. and if you look at the kinds of cases that have attracted is this court's buffer zone jurisprudence like "new york times" versus solving you're talking about there statements that were made to -- or about public officials or public figures, perhaps expanded to matters of public concern, where there really was a social interest in preserving that kind of speech. here what you're talking about are criminal threats, statements that are taking away any private meanings that the individual attached to them would leave observers of the view, hey this guy intends to carry out an act of violence against somebody. that is not something that has first amendment value. there are plenty of ways to express yourself without doing it in a way that will lead people to think this guy is about to hurt somebody. >> what about the language at pages 54 to 55 of the petitioner's brief? you know, make a nice bed for mommy at the bottom of the lake, tie a rope around a rock. this is in the context of a domes

[laughter] of kagan that in the morning and i have a stack of books is a the of books seats -- taxi and i read aloud somehow reading out loud in and of the car to myself with a book on paper helps me. but in the middle of the night it is different so i will usually read between the hours of three and five. on the i felt because it is of lovely little machine that does not hit you in the head like the eye patch. [laughter] >>. >> i only read on a device because i use to travel with 100 pounds of books of god forbid i was stuck somewhere. >> with a car going really fast. >> and another question inside covet. like killing people in the condo. either you like the self loans or the people in the condo. not both. and if you use the cell phone the new are raping women. in we are all on selfie of. >> what are you talking about? [laughter] >> the main chemical in cell phones is mined in, go and the reason it doesn't work because people make a profit in the the one democratic nation stopping them from getting the cheapest possible mineral to put in the cell phone. and which rather read books on p

elena kagan was the boss to several of men and women who argued before the court now when she herself was solicitor general. so their personal interactions. >> host: what is your next book? >> guest: i don't know but i'm going to be one. so much fun. do you have an idea of? this is more of a political history than a biography and i'm kind of running out of the ones with great personal stories so i've got to think long and hard. the other reason you to think long and hard as you spend so much time doing it. it pulls you away from your family in your day job so you want to choose wisely. >> host: "breaking in" is the name of joan biskupic's is that the rise of sonia sotomayor and the politics of justice. >> thank you everyone for being here. welcome to book people. i'm steve one of the owners the store and very happy to be here. i'm particularly happy to be able to introduce richard parker this evening to talk a little bit about his book, "lone star nation"." richard in case you guys don't know this is an award-winning journalist. he has written works that have appeared in "the new york

after that, a conversation with elena kagan. and then q&a. the president of la raza. >> the 114th congress gavels in on tuesday. tracking the gop led congress and have your say as events unfold on the c-span networks, c-span radio and www.c-span.org .

later, a conversation with elena kagan. >> a senate finance committee hearing on retirement savings and the tax code. topics included policy experts. they talked about the gap between how much americans are

as kagan points out, if you go back to spain under phillip ii or france under the louis or the soviet union or nazi germany, none of those countries will have imposed or imposed a liberal economic and political value system. now, at the end of the second world war the united states inherited the role that britain -- britain was exhausted and we got the job of being the hegemon and of policing the freedom of the seas, promoting free trade and defending the freedoms that are listed in our very constitution. all of this order it seems to me is potentially at risk. which is have it's so important that we react vigorous lyly to these acts that happened last week but more broad lyly to the overall geopolitical problem. now, i know from reading the polls and listening to all the pundits that americans are "tired of war." for the first time in 70 years pew polls are showing that both political parties are calling for america to pay more attention at home. we hear from politicians not only are they tired of war but it's time to mind our own business. where polls show the americans no longer wa

[laughter] yet, it's as don kagan said, bull buckley described burnham -- bill buckley described burnham as the foremost intellectual influence on national review from its founding in 1955 when burnham helped bill start that great magazine. don also mentioned the managerial revolution, probably his best known book. published in 1941. just as he was negotiating that perilous journey that don adam -- [inaudible] from trotzkyist infatuation to an astringent species of democratic realism. today, i think, burnham is best known to the extent that he's known at all as an anti-communist crusader. and he was that. but he did not confine his criticism to communism. far from it. on the contrary he understood that the impulse to totalitarian surrender comes in all manner of guises. and that is part of what underwrites his contemporary relevance, part of what makes it so pertinent that we are celebrating him here today. the managerial revolution that aimed to repel freedom for the sake of bureaucratic efficiency and control, that was burnham's real subject. that revolution has not, not yet, not quite

they do have to prove it, justice kagan, if the proof comes close they get deference. if they offer serious evidence, they get deference, but here they offered very limited conclusory testimony, no examples in a situation where there should be plenty of examples. you can't administer a prison and maintain any kind of safety and security if you don't have some sense of where prisoners hide things. they don't have to dig out the data from the files. if prisoners were routinely hiding things in beards, these two witnesses would have known that, would have remembered it from the earlier rule in arkansas, and it would be easy to get examples of that from other states. there's simply no evidence in this record that it's a significant problem. >> what about the argument that there's no comparison, that arkansas is unique in the way it houses its prisoners and that the rules that were cited elsewhere have to do with minimum security facilities? >> arkansas may be somewhat different in how it -- in the number of maximum security prisoners working outside in the fields, but that

. >> reporter: like me, harvard psychology professor jerome kagan identifies with the new england patriotsid, days after this interview, that when the country branded them cheats for deflategate, he felt anger and shame. >> i belong to my family, i live in new england and therefore anything good or bad that happens to those categories, affects my emotional life, i have no control over it. we are symbolic beings okay? >> reporter: and your team, says the psychology professor, is your symbolic family. >> you cannot help but feel that if new england does well and i live here then i'm enhanced in some way. >> reporter: and indeed on playoff sunday, i was enhanced even tangibly, giving seven points to the colts, cashing the bet after the patriots won by 38. we patriots sheep were then diminished, however, by the slings and arrows of outrageous footballs. and so, your conflicted economics correspondent paul solman, reporting for the pbs newshour. >> woodruff: again, the major developments of the day. another deadline came and went with no word on two islamic state hostages, one japanese and one

you had justices ginsburg breyer, sotomayor and kagan having the toughest questions to the housing agencyr. justice breyer said why should we say it's not available under this particular law and the texas lawyer made two arguments. he said this t plain language of the federal law doesn't say it's available. it only addresses intentional discrimination, not impact discrimination. also, he said if governments and zoning officers, the banks, lenders are faced with disparate impact liability, they're going to be forced to make race-conscious decisions. on the other side, we heard arguments, the solicitor general of the united states and the lawyer for the project that's sued defended the use of these claims. chief justice roberts and justice ali alito and scalia had problems with the claim. chief justice roberts said how do you tell whether there's a good or a bad impact? maybe the community wants development because the neighborhood is blighted and this is a community that's predominantly minority or there's a community that wants to be integrated. so how do you tell? the solicitor general o

the vote was 5-2 with justice kagan and brier not voting on it. and the reason why a corporate right was found it is because of the hhs mandate that is rare and forces people to bend their religious beliefs to the will of the government for no particular reason. thanks. [applause] >> ilya says my problem is rifra. but i think what he misses and the court distorted is what it was all about. it was about creating a balance between the right of individuals to seek religious exemptions and statutes in the past that apply to religious and the non-religious alike. and the law prior to this was only a very small number of claims per religious exemption were mandated. and what the court did was to create a new body of first amendment laws that has no law that existed since our nation was founded. you know ilya said the government's interests were vague. but they were not vague. they are about making sure women have access to the full range of contraceptions. the iud is the most expensive and the one hobby lobby doesn't want to pay for. that means if you a

this is my nephew kagan. >> good to see you. come on over on the side. >> this is my sister lisa. and her step-son jerry. >> how are you? good to see you. how are you? hi, how are you? good to see you. hey bill. >> we will go back there. >> come on and slide across and get everybody in. we will switch here. [inaudible conversations] if everybody can look up. >> looked up at the photographer up top. [inaudible conversations] >> of course i would. what's her name? betty, how are you? my name is joe biden vice president biden. how are you? i know and i just swore in your grandson. yeah all right. i'm going to put him on the phone. here he is. i don't have time, i'm watching my grandson being sworn in. that's what she said. [laughter] she said that's very nice. she said i don't have time right now. [laughter] >> she said you know that's very nice but i don't have time right now. i'm watching my grandson being sworn in. [laughter] so what the heck, do you know what i mean? i got to meet with, i invited an outfit in san francisco and i invited about 20 to meet with me. one of them was f

the vote was 5-2, justices kagan and breyer didn't feel the need to opine and the reason why a corporate right was found to be in this way at this time was because it's he hhs mandate that is so rare and unprecedented to force people to bend their religious beliefs to the will of the government for no particular reason. thanks. [applause] >> so, ilya says that my problem is rfra and i can't accept rfra. i think what ilya misses and what the court distorted what was rfra was about, about creating a balance between the right of individuals to seek religious exemptions and statutes passed neutrally generally applicable statutes passed to the religion and the nonreligious alike, and the law prior to rfra was only a very small number of claims for religious exemption were mandated and what the court has done quite consciously is create a new bid of first amendment law that has no roots really in any law that has existed since our nation was founded. ilya has sort of said well the government's interests here were so vague. they weren't vague. they were about ensuring that women cannot have acc

i think what it does -- i'm just repeating what i said before -- but i think then-professor kagan's article in the harvard law review talking about how administration can use the administrative state for political purposes is becoming the blue print. and i think administrations are becoming more and more sophisticated about how to use the administrative state for their own political purposes and i don't see congress being an effective check on that. >> thank you. the next question? >> this is directed primarily at chad. i like the youngstown framework that you set up a lot, and i think you're clearly right that when congress is equivocal orexplicitly contradictory that's going to sort of decrease its power and, therefore increase the executive's power if you think of it as like a zero sum game. but i kind of want to push you on giving shape to -- [inaudible] it seems -- i think there are good arguments >> for making it more constrained giving it more contours than kind of the contradiction equals all that you presented in the talk. and i guess there are two ways i would think of it, right?

. >> what about the answer to justice kagan's question? is it, oh, well -- >> i don't think -- >> oh, well, i'm not going to answer that question because we can think about something else? >> i think the answer to that question is no, because the contributions are still permissible. and the line that the court drew in mcconnell, in terms of solicitation limitations, was it's quite permissible to ban candidates from soliciting contributions that cannot lawfully be made to their committees when there are other avenues when they can still solicit contributions for their committees. i think it would be quite a different situation to say, yes, we're going to have an election but no one can solicit any money for the campaign committee because, as the court has said money is essential to get the candidate's message out. >> the whole -- but the whole effort on florida's part is to make the selection of judges not like the political context. and you, what you're saying is that they if they choose to elect their judges, they can do it only one way a

sonia salt sotomayor and alana kagan. >> i worry about the climate of the era, how that gets reflectedhington so broken so dysfunctional, partisan polarization. in obama's case is especially pronounced because the promise of candidate obama was to break through that be transformational, bring the two parties together. the fact that those were the expectations he set in the campaign in 2008 and that this is the reality of american politics now does that affects his legacy? >> i think we tend to forget it as part of the legacy. we focus on the great man idea of american politics. we look at what the president did, didn't do what was fleeting or lasting, but the environment is really what matters. i do think it shapes what a president can do. obama's presidency is in part about the republicans on capitol hill. that will be a big legacy, the right shift to the party, the party to obstruct a lot of policies in 2010. we talk about president johnson as a villain with vietnam or a hero with the great society, but what was it about congress or the nation that allowed a transformative period to

last year, i was having lunch with justice kagan. we started talking about how hard our senior justices worked in the various federal circuits. without thinking about it, i said when and if i retire i want to go back to district court. when asked why, why would i want to do what i have been doing for however many years it's been? i want to go back to my first love. the district court is an exciting place. at least for me, it was the formative experience of preparing me for the court. i still look at cases like district courts do. i look to the facts. i try to apply the facts to law. my colleagues look at the law. that's all sometimes they are looking at. it's a very different perspective. i will never disavow. i think it has value. for me, my greatest time was on the district court in terms of preparing me for the supreme court. >> was the u.s. attorney or arguing cases in the supreme court, which do you think you took the most from now as a justice? >> arguing is much more closely related to what i am doing. i treasured the experien

you see, i think this came up in the last vocation of justice kagan's famous article of presidentialtion going back to the clintonears. you see this will increase for the president as a major role in administrative governance. so that's one governance trend. another one, though specific to the obama administration that really should be flagged is that we see -- and this goes back to the early years of the first term -- some major new federal regulatory undertakings and programmatic initiatives. and initiatives which critically rely on the states for their implementation and engage the states in a very important way. again, federal/state cooperation, joint running of programs is longstanding, but these programs -- the affordable care act i'll talk about that in a moment -- are really the most significant nichetives -- initiatives in a few decades of that kind of undertaking, that kind of major new cooperative of program on the part of the federal government. they're also central to president obama's legacy. so just talking a little bit about the affordable care act abby gluck from yal

i think what it does -- i'm just repeating what i said before -- but i think then-professor kagan's article in the harvard law review talking about how administration can use the administrative state for political purposes is becoming the blue print. and i think administrations are becoming more and more sophisticated about how to use the administrative state for their own political purposes and i don't see congress being an effective check on that. >> thank you. the next question? >> this is directed primarily at chad. i like the youngstown framework that you set up a lot, and i think you're clearly right that when congress is equivocal orexplicitly contradictory that's going to sort of decrease its power and, therefore increase the executive's power if you think of it as like a zero sum game. but i kind of want to push you on giving shape to -- [inaudible] it seems -- i think there are good arguments for making it more constrained giving it more contours than kind of the contradiction equals all that you presented in the talk. and i guess there are two ways i would think of it, right? one

if i could return to justice kagan's question about the interest that is served, it's different. a directional sign there needs to be more of them in order to direct travelers along a route so that justifies a perhaps a smaller size. there's no contention in the record, in fact, the court of appeals found that they function as intended. as far as the duration there's no travelers going to an event that is not presently occurring. in fact, the town of gilbert expanded the time frame from two hours to 12 hours and our question request is whether or not -- our question is whether or not that's something that implicates first amendment jurisprudence -- >> well, you say on suppose we're talking about the context of signs. you say, well let's look to the purpose of forbidding any prohibition, and i guess it has to do with safety or beatification. >> yes. >> first question would be is there some category that you don't allow to put up signs? answer no. everybody can put up signs. so what about applying strict scrutiny to that if you're going to distinguish on the basis of what the sign

and last year justice kagan spoke to the graduating class. so a number of the faculty were thinking what would be a good new tradition would be to have a leading member of the bench and bar come in at the start of the year to talk to our first year students about their career and to offered a vice about legal careers as people start their legal studies. so i can tell you how delighted i am that justice stevens is joining us here today. so a round of applause for justice stevens. [applause] >> maybe i should quit while i'm ahead. [laughter] thank you all very much. [laughter] >> so just a few housekeeping matters. if you have cell phones, turn them off. i'll wait. and what we're going to do is justice stevens and i will talk and a number of students submitted questions in advance and so i will read those questions in addition to some questions that i've written. if we have time at the hour we'll have hand mics and we'll ask questions. it's great to see so many distinguished alumni and faculty and senior staff, my wife allison treanor and so ma

elena kagan actually was the boss to several of the men and women who argued before the court now when she herself was solicitor general. so there are plenty of professional and personal interactions. >> what's your next book? >> i don't know what i'm going to do when. it's so much fun. do you have an idea wrecks know you know, this is more of a political history than a biography. i'm kind of running out of the ones with really great personal stories. so got to think long and hard to the of the reason you have to think long and hard is you spend so much time doing it it pulls you away from your family and your day job so you want to choose wisely. >> "breaking in" visiting of the joan biskupic's most recent book. >> booktv continues with allen west. he talks of the importance of preserving the core values that he was raised on family, faith, tradition, service, honor, fiscal responsibility, courage and freedom lieutenant colonel west says that these values are under attack by the far left and the obama administration. this is about one hour. >> thanks so much, between. it will is an ho