host: what about you justice kagan? controversynk the about looking at foreign law is narrower than people might think. a lot of the book is about using international law and foreign law where nobody would think we should do anything else. the controversy over looking at foreign law arises in the context of a few constitutional the twoth particularly cruel and unusual punishment. i think it is narrower than that. it is more than there are a few look to law people foreign practices and foreign laws and others not. on the one hand, i agree with john that you should never close yourself off to torturous information. i'm not going to read law review articles. the people who make a fetish of this are wrong to do so. hand, there is something serious about the that we have our own constitutional system. that one can go about and pick and choose from any country that you happen to like on any given occasion, that would be a quite wrong way to talk about the law.opment of american i think there is some ground to be skeptical abo

justice kagan: we have great summers. i work awfully hard from mid-september through the end of june. we have these terrific summers so we have fun. gosh, i like to travel in the summer. i'm a baseball fan. i go to lots of movies. a fair amount of reading novels and things like that. for me, it is really important even during the term to be able to get away sometimes and refresh. i expect it is like that for most people. you just have to give yourself a little bit of downtime. >> what about for the young people? who have tremendous pressures from the lawfirms. do it anyway? what about you, justice stevens. you are telling me about swimming. [laughter] to sce stevens: i do like wim and i love to swim in the ocean in florida, provided i have a big strong person nearby to help me get out of the ocean which is a problem as you get older. [laughter] differencevast between the spare time after you retired and while you are on the court because while you were on the court, you have very little spare time during the term. of cour

i want to eliminate any confusion with justice kagan. why would all the harms in society harms to re-election not be legally cognizable. it is to keep the federal judiciary in the proper limited role in democracy. if two unelected judges falsely altered the state sovereign's view of redistricting, that would be the situation we would want to find the injury most cognizable because that's where the court exercises extraordinary caution and extraordinary -- i apologize. >> there's the question of injury and fact which you are talking about. does a member of congress who wants to be re-elected have a legally cognizable interest in running in a district that was lawfully enacted by the state legislature? mr. carvin: yes. he certainly does because obviously the interveerns -- you have to accept as true for standing purpose, the improper interference of the federal judiciary into that political thicket which harms him and rearranges the entire districts is obviously injury in fact and just the kind of interest that this court would want to fin

justice kagan: well, mr.opper, can i ask, do you think that this would count as a formal adjudication under the apa? mr. hopper: yes. justice kagan: a formal adjudication under the apa. mr. hopper: yes. there was a the agency applied the law to a specific set of facts, had a formal hearing, and -- justice kagan: would it be mr. hopper: issued a final -- justice breyer: it's not -- justice kagan: would it then receive chevron deference? mr. hopper: oh, i'm sorry. well, not in that sense, no. justice kagan: yeah. not in that sense, no. i wouldn't think so in that sense. i wouldn't think it's formal adjudication, and i wouldn't think it would receive chevron deference. and you know, there's a very fine opinion by judge sutton on this question, and he basically says the kinds of things that are not final, the kinds of advisory-type rulings that are not final are the ones where there's no chevron difference given, that that's the proper line to draw. those that's when you know that there's a kind of formality to i

justice kagan: mr. francisco, could i ask the line you're drawing between exercising influence and providing access, just to sort of test that with a hypothetical, suppose that somebody knew that there was a contractor who was going to award a very large contract to one of two or three firms that the that he was meeting with. and a company paid to make sure that they were on the meet list, to be one of those two or three firms, in other words, bribed -- mr. francisco: sure. justice kagan: an official in order to become one of those two or three firms from which that was the pool from which -- mr. francisco: right. justice kagan: this billion-dollar contract would emerge, would that be sufficient? mr. francisco: your honor, i think that probably would be "official action" because there the only way you can even get a decision in your favor is by being one of three people on that list. so being on that list is a prerequisite to getting a decision. being denied on that list is a denial of the decision, and

justice kagan: rather than this was this is not an "official act"? mr. francisco: and, yes, your honor. to be clear, we have two separate arguments here. one is on the jury instructions where our argument is that even if they agreed with all of our view of the facts, they still would have been required to convict, given these erroneous jury instructions. and secondly, our second argument is the sufficiency argument. even a properly instructed jury, in our view, could not have concluded that governor mcdonnell crossed that line. justice kennedy: well, just to be clear, you said at the outset you don't think any of these are "official acts," but then i thought i heard you say that, third, contacting other government officials as part of an effort to encourage state research is not an "official act"? mr. francisco: that's the indictment, your honor. if they had actually proved what was -- justice kennedy: what was justice kagan is asking, is that an "official act"? mr. francisco: if it actually -- justice kagan: if it's true, but -- mr. francisco: if he had

kagan: we have great summers. work hard from mid-september through the end of june, but we have these terrific summers and we have some fun. travel in the summer, i'm a baseball fan, i go to lots of movies. amount of reading novels and things like that. evening -- even during the term to get away and refresh. i suspect it is like that for most people and you have to give yourself a little bit of downtime. >> what about for the young people? you are telling me about swimming. justice stevens: i do like to swim and i love to swim in the [indiscernible] there is a vast difference between the time you retire and the time you are on the court. ,ou have very little spare time i'm not sure i can speak in the present circumstances he goes your work load is about half -- [laughter] justice kagan: when i clerked on the court, there were 140 cases and now there are about 80. i always tell my clerks -- when -- i feel like i know what it was. justice stevens: you were a little earlier. >> 150 cases, but the justices had severa

-- elena kagan react to that? that is also a new york story. one thing that makes the judiciary powerful is a divided government because it enables the judiciary to be right-wing or left-wing and at least one of the two parties in the divided government is going to be happy with that. so, if hillary clinton manages to win and the senate and actually get the house, which could be in play because donald trump could lose the house of representatives for his party, that is going to be a very different world for the likes of the republicans on the court. contrariwise, it could be the case -- both are actually possibilities -- that trump wins and carries the senate and the house and of course he will have the judiciary then, too. he will be able to replenish with the person of his choice. it will not be merrick garland, and now the unified government with a vengeance, the republicans controlling all of the branches and that could happen in this election which makes this election so interesting. one is rise of divided go

the employees -- >> justice kagan is wrong. basically you're saying even if all you do is a knock down, i raise my hand, i tell you that 'm a religious objector, and they somehow from this suit they know who your third party administrator is, they have a general law that requires all erisa plans and insurance companies to tell them who your clients are, that if insurer is involved in any way, you object. mr. francisco: not necessarily. as mr. clement was saying. if there was an uber insurance policy where aetna was the company the government picked to provide contraceptive coverage to all womenn this country and we happened to use aetna, we would be fine. >> paid for by the government? mr. francisco: yefment 7 >> the question was, these college students. they want to get the same coverage that is available for all other conditions. as far as i understand you're saying no. justice ginsburg: it has it be some other -- to be some other plan. as long as you connect the insurer, that is insuring the religious organization, as long a

azhar elena kagan, justice ginsburg. justice alito is not from that far away -- newark. i know it's on the other side of the bridge. a new york story we will be exploring together this evening. i want to begin with the relationship between presidents and justices and offer you an of the structure of that relationship and in particular, there are two big points. pattern to thee dalrican presidency -- ti pattern to the american presidency. pattern creates face-offs at moments in american history between presidents and justices. structure, the situation of the constitution. our justices are chosen politically. justices do not pick their successors quite. it's not a self-perpetuating meritocracy the way that yale law school will pick it successors. the way the cardinals pick the pope and the pope names cardinals and the cardinals pick the pope and this self-perpetuating way -- no, our constitution provides for political choice to be made whenever there is to be a replenishment of the judiciary. both supreme court and the lower federal court. so, the process of selection is b

sandra, david and aristide and ruth. >> so justice kagan you have not been on the court quite as long looking for to the anniversary but one of the things that has changed since i was a law clerk and since you were is the way the core use this technology. we had typewriters that is the device that is not hooked up you just create text directly from it for those that our young. [laughter] but how has technology change the way the court does its work? >>. >> also is a to be happier with john stevens so john would only be a hundred and two gutted it is the special thing to get the ball call from the president we would like you to be on the supreme court today you will be the successor to john stevens and all that john stevens accomplished in and really that was the inspiration. thank you. [applause] some technology the way you frame the question the way it has chased with the court? that has changed and not as much as we think. with 25 years after with the information revolution but we don't use typewriters anymore but we still have messengers that walk around the building did any of you

so let me, i realize we should wrap this up, but let me ask both of you -- i'll first ask justice kagan, you know, what do you do for fun? and what would your advice -- if you have any time for fun. i hope you do. and what advice would you give to young lawyers today? >> yeah. well, we have great summers, so i work awfully hard from, you know, mid september through the end of june, but we have these terrific summers. so we have some fun. what do -- gosh. i like to travel in the summer. i'm a baseball fan. >> uh-huh. >> i go to lots of movies. >> excellent. >> do a fair amount of just, you know, reading novels and things like that. so i don't know, for me it's really important even during the term, it's really important to be able to get away sometimes and to refresh. i suspect it's like that for most people, right? you just have to give yourself a little bit of down time. >> uh-huh. and what about for the young people who have tremendous pressures from their law firms, rumor has it. [laughter] but do it anyway. >> i think so. >> what about you, justice stevens? you were telling me about

he had to get john kagan to handle these guns. lieutenant kagan looked at the colonel and he said, sir, i'm not engineer -- an engineer. i'm a sailor. but when you put a gun on a slope and the gun is here and you shoot it, wouldn't it roll down the hill? wadsworth said, no, what it will do is give you more trajectory. leave them where they are. he said, sir, i really think they are going to roll down the hill. what's ritz said, i'm telling you, leave them where they are. okey-dokey. the hill goes down right down to the water where the creek is. there are trees. there is a three line. it is gorgeous. please go to pattison park. it's beautiful. but you cannot see what is at the confluence of the creek and the river. so, captain miller is up the hill with his spyglass. he is looking. he says, you know what? we cannot adjust fire right now. he puts his marines in the picket line all the way down to the water with the orders, tell me where the shots went. they had a line. there were no radios or anything we think of as modern communica

justice elena kagan said the prosecutor's cut was as clear a violation as the court is ever going to see thanks to the discovery of the prosecutor's notes. the names of the potential african american jurors were highlighted in green and in this list of possible jurors titled "definite no," the top five people are black. georgia argued that prosecutors had flagged the black perspective jurors to make sure they were following new supreme court guidelines handed down in a landmark 1986 case to prevent racial discrimination in jury selection. now, some anti-death penalty groups say that race discrimination in jury selection may be less obvious today, but it still persist, but norah, this case focused solely on foster's trial 30 years ago. it did not address those bigger concerns. >> o'donnell: jan crawford outside the supreme court. january, thank you. in the presidential race, democrat hillary clinton opened fire today on republican donald trump, addressing a labor convention in detroit, clinton said trump would bankrupt america and asked how can anybody lose money running a casino. ber

welcome. >> thank you, senator kagan. [applause] and it's -- thank you. thank you. and thank you all for braving the weather as well. i'm quite honored to be at the gaithersburg book festival as a first-time author, even to say that is quite exciting. and to be here in the presence of such wonderful and impressive authors. betty margolin, i'll start off by telling you a little bit about her. because to read something from my book would be meaningless when so few people have ever heard of this amazing woman. i like to think that we've all heard of and many of us love the notorious rbg. well, before there was a no to have yous rbg, there was an audacious betty margolin. and she was raised in a jewish orphanage in new orleans where she learned powerful lessons in social justice that shaped her into one of the 20th century's most influential attorneys. beginning in the 1930s, she earned rare law degrees for a woman from both tulane and yale and went on to leave her mark on some of the biggest issues of her day. she was the only woman on the brilliant legal team that bro

. >> the question is highlighted by eight justice kagan hypothetical of not for the voting rights act the you can not take race into account data of this discrimination to take a rental action on the basis of race. is there any relevance to this case that will never come up again in the future if the voting rights act is not amended? >> but the fact was they had to get clearance in record time. >> that is why it made good sense not to go below the benchmark even if they just pull that out of the year it establishes a violation because here it is always a factor so it's not like employment of other context it said in a case such as this were the majority minority districts are issued and it correlates highly to attack those boundaries to show with the legislature could have accomplished spirit the first seven words is what do they mean by that? and that broad understanding that as a case that there was node direct evidence but only circumstantial evidence and in the absence or the presence of that was relevant to the question of that was circumstantial evidence that was added up to the

. >> robert kagan in a reasonable neocon sticking it to him. >> by the way a lot of the other neocon types they don't want to have anything to do with him. >> at some point the big story will be when hillary grabs some of them. new national pole for "the new york times" shows clinton with a six point lead over trump. 47%, 41%. that is down from a 10 point lead. in this poll trump is closing. there's evidence the republican party's falling in line behind trump. 80% of republicans, four out of five say their party leaders should support trump. joy, this is a coming home faster than i expected to the party. there are people historically more obedient than democrats. it's like catholic school to public school. they don't talk unless spoken to. they do fall in line, they don't fall in love. this is quick to fall in line though. 80% say do what he wants. >> i think it's one other example of the fact that you know, there are certain number of elites in the republican party, really more in the conservative movement. the neo cons, the ericksons of the world who detest donald trump because he

james baker, richard birt, henry kissinger, not the neoconservatives like bill kristol and robert kagan and others that are important but they represent another divide, another wing in the foreign policy establishment. to some degree the gap between kissinger and trump, he's like a turbocharged realist in this and the two of them are going to get the other meeting kissinger and the republican party like the new hampshire primary. everybody has to do it. but there's a lot less distance than a lot of people are arguing right now because trump came out and said he's about national interest, about america first. and while kissinger doesn't want trump to rep nato, a lot of things sounds like old kissinger. >> what about the fact that henry kissinger was the guy that arranged the meeting in china between nixon in '72 and we've heard donald trump for the better part of almost a year now rail against china, the manipulation of the currency, trade stuff as well. how do you reconcile those two things? >> well, donald trump gave one serious national security speech at the center for the national i

. >> justice kagan spoke yesterday at nyu, and she mentioned, i think, that the supreme court was a bit duller and a bit more gray as an institution and that the justices are sad to have lost their colleague. so it's very interesting. we are here at georgetown law school where, as we've covered on above the law, a number of professors had dueling e-mails to the entire community about whether or not they really mourned justice scalia. but i think that for his colleagues at the court, certainly -- including justice ginsburg who gave some of the most moving testimonies, testimonials to him -- is very much missed. >> i also think for the justices that are very invested in the functioning of the court as an institution above politics, this is a very difficult moment because, you know, chuck grassley gave a speech today in which he said it's john roberts' fault that they're not confirming a nominee, because he's politicized the court with his obamacare votes. which i thought was pretty ironic, considering that those votes stand in testimony that the court can be above what the republican part

robert kagan, a reasonable neocon, and a hawk, who went after him in a big box column today, robert. really sticking it to him. >> and by the way, a lot of the other neocon types, the bill kristols and so on, they don't want to have anything to do with donald trump. >> they think hillary is going to -- at some point, the big story, when hillary swaps and grabs some of them. anyway, new national poll shows clinton with a six-point lead over trump. we've seen that as of late last night, 47-41. that's down from a ten-point lead a month ago. at least in this poll, trump is closing. meanwhile, there's evidence that the republican party is falling in line behind this. this is pretty astounding. 80% of republicans, four out of five, say their party leaders should support trump. joy, this is a coming home faster than i expected to the party. there are people historically more obedient than democrats. it's more like catholic school than public school, they do what they're told, they put their hands together and talk unless spoken to, but they do fall in line, they don't fall in love. this is

kagan moves on to what these people will not see is being republican supporters of mr., is that once in power, mr. trump will old them and their party nothing. this is your first read into the weekend. you may agree or disagree but there is a hilarity as we go into our political summer. iaian shepherdson with us. this is anckdrop for economy. it is the economy election. it's not, is it? tan: it is and it isn' because it is the economy that has driven the rise of trump. tom: and sanders. issues that the mainstream have not addressed -- which is the hollowing out of mostly blue-collar jobs over the last 20 or 30 years. a flattening of living standards. which the traditional parties have had very little to say about. and sanders have trumped -- and trump have picked up on this and have pushed it in. tom: going into this weekend, the stanley fischer paper with columbia university in woodford. the assumption of your academics is it is all in together, america. a one mode america. john edwards is right. it is a to america. a bimodal analysis. do you use that within your econo

without question, the essay of last week was robert kagan of brookings writing in "the washington postador haass, everybody is talking about this essay, and you just mentioned our nationalism. , somee many nationalisms good but some bad ones as well. richard: nationalism can be collective but also tear at the factor -- but also tear at the fabric of the nation. i worry about economic nationalism. it feeds into this we have got to turn inward, and obviously we have to keep the balance between what we do here and what we do in the world of globalization. we cannot prosper at home unless we are heavily involved in the world. tom: can there be a constructive republican policy? there is a huge debate about people over here and over there. can mr. trump be dragged toward a more moderate stance, or is that unproven at this point? richard: i think the question can be asked about both parties. in both parties you have powerful tendencies or forces arguing against globalization. you see it in the democratic party, manifested by senator sanders. in the republican party with large elements of dona

the justices had signalled at oral arguments they were justice elaina kagan said the prosecutor's conductolation as the the court is ever going to see thanks to the discovery of the prosecutor's notes. the names of potential african-american jurors were highlighted in green and in the list of possible jurors titled definite noes the top five people are black. georgia argued that prosecutors flagged the black prospective jurors to make sure they were following new supreme court guidelines handed down in a landmark 1986 case to prevent racial discrimination in jury % selection. now, some anti-death penalty groups say that race discrimination in jury selection may be less obvious today but it persists. norah, this case focused on foster's trial, 30 years age and did not address the bigger concerns. >> all right, jan crawford. outside the supreme court. thank you. >>> in the presidential race, democrat hillary clinton opened fire today on republican donald trump. addressing a labor convention in detroit, clinton said trump would bankrupt america. and asked how can anybody lose money running a

on the supreme court right now they are almost all former federal appeal court judges, except for kagane people said, look, we need more diversity, former politicians, et cetera. two big absences, names that we thought might be on a trump list in conservative circles, brett cavanagh and paul clement, former solicitor general from the bush administration who has always been on some kind of short list. when we think about what a republican nominee -- who he might pick if he had a chance. >> thank you so much, ariane. quick break. back after this. y >>> welcome back. you're watching cnn. i'm brooke baldwin. breaking news here. donald trump has just released his list of potential names, potential nominees for the u.s. supreme court. 11 people on the list here. possible nominees in the event mr. trump is elected president, so let's bring in first up sara murray who has been looking through some of the names before we bring in our panel. sara murray, important to point out, as you have, that some of these names match what we've seen from the conservative think tank in washington, the heritage

don't agree with so he should be a model to us in his friendship with justice ginsberg and justice kagan in particular should be a model going forward. >> he was human and his ability to do that wasn't perfect. that sometimes took a while. after planned parenthood versus casey and the lack of logical reasoning in that opinion, holding a grudge is too long a word but three years later when i was on the court, we wrote the court skit at the end of the year that still reflected some of the tension that still lingered over that case. but he liked you to push back when he was sparring with you and i'll close with this anecdote. t's a tradition at the court that the justices would take the clerks from other chambers out for lunch at some point or what have you and he would always take the clerks to a.v.'s pizza and when he took the thomas clerks out my year, we went there and he would famously order pizza with anchovies and demand that everybody eat it and i wouldn't eat it and he said, eastman, real men would eat anchovies on the pizza and i said no a real man will say no if he doesn't like i

i think you have to think about it the implications of two more sonia sotomayor or two more elena kagan'sst issue, not the economy or national security -- >> the next president will nominate that. we'll ask one of the most influential republicans in the country, mitch mcconnell. he has a new book. >>> we'll go over this right now. this is something that happened over the weekend. if you blinked you missed it. the huffington post had a writer yes this story. it was jarring. it was very jarring. it talks about hillary clinton's e-mails, recovered the deleted e-mails and put it together to see a direct linkage between 20 different countries that she cut arms deals with and only 10% of the clinton foundation -- the money has gone to charitable causes. almost as if these are racketeering charges that are going to indict her according to this columnist under the rico -- the same way we took down the mobster. >> when this was posted it, it was an accident and the writer said that's not true. he's asking huffington post why did you take down my article? because this is factually correct. >> think

kagan said to us in america.e said "virtually all the opposition is islamists one way or another at this point" and went on to say "we make distinction between those, referring to jihadists, and political izislamists groups tied to the muslim brother hood, the likely assaults of acceptable allies that we could work with." so, it appears to be and we've had similar evidence from other experts. it appears to be fairly well conceded that the majority of the opposition fighters as said in your own written answer, a heavy majority of them are islamists, it's a question of distingishing between those regarded of beyond the pail quite rightly, such as jihadists and so forth and other islamists who might be more closely affiliated to organizations like the muslim brother hood. that seems to be what we're getting from the experts. do you concur with that? you're saying that the so-called moderates, are like the muslim brother hood? >> well, i think we can start -- we can argue for a very long time about these precise defi