justice kagan: there are two points you are pretty clear about. one is the fda has told them, we understand this proposal is about major risks and we don't think there is enough evidence in the literature to support that, that is easy, merck does not change its label, and there can't be a suit against merck. on the other hand, suppose that the fda -- i understood this to be your point -- suppose the fda said, the real problem with your label is you are talking about stress fractures and we think the issue is major fractures, and that is why we are rejecting it. we are going to be considering the possibility of major factors. if the fda had said that clearly, merck is not off the hook. would you agree with that? mr. stewart: i would, with this caveat. you would expect this letter, given that the documentation included information about the more serious type of fracture, even if the fda was concerned about the wording, you would express it to express a view one way or the other as to whether there was sufficient evidence -- justice kagan: it does no

please join me in welcoming justice kagan. thank you. [applause] justice kagan: thank you so much. thank you. and thank you, greg, for all that you do for the supreme court historical society. i noticed that you can do my biography now without notes. that might just be because of your astonishing memory, but i have the feeling that we have done this, the two of us, before, which suggests how many years you have been incredibly important to the historical society and because important to the historical society, important to the supreme court. what the historical society does is very significant to the court in promoting understanding of the court, of the constitution. i don't know if some of you saw the very sad news today that justice o'connor is retiring from public life because she is in the early stages of dementia. and in the statement that she wrote, in very typical justice o'connor fashion, she used this sad occasion to do good. and if you haven't read her statement, please do so, because she talks about the importance of civic education for our society, for the way we govern

like justice kagan's example of perhaps ovarian cancer and ovarian cysts. but if the fda sees this proposed warning and they think the wording here is bad, they shouldn't be talking about stress fractures. but we look at the data and we see there is something that should be labeled differently, and there should be a warning about that. it would shock me if the -- what the fda should do in this situation is to say well you know you got the warning wrong, and so we're not going to issue it. and we're going to do we're going to prohibit that but not do anything more. if they understood there was a dangerous of something else that is at least related to what the manufacturer was proposing to warning about surely, the public would expect them to do something. that's what troubles me with your argument. >> well justice suleto if you look further into the record of what happened here, there's an april 2009 email chain between the fda and merck in which fda says it wants to "work with merck on precautions language" if it is warranted. it is still trying to understa

they want liberal folks like elana kagan and a middle-of-the-road rapport photo record. she's more liberal on this court that she was in the lower court judge. even dennis burke considered centrist liberal on the court of appeals and i think i'd argue that if she were on a different court, she would still he characterized that way. but she is on this court, just like justice stevens was. he was considered the most liberal member of the course before he retired and i don't think he changed that much. he was a conservative, ford nominated him. he changed a couple of things but not anything big. the court changed. that's because republican presidents have a base that cares passionately about it, once conservative, very conservative, i don't use this term, ideologically. people who believe something very specific. how to interpret the constitution, how to view issues and the mantra was, no more suitors. that is the mantra for republicans and that is why -- it's not any secret that president trump's farmed out his choices to the federal society. that's where that list came fr

i met elena kagan when she was in the clinton and carter administration. not the carter administration, but the clinton administration and the obama industries -- administration. the people that i probably know the best are the ones i have known the longest. i knew john roberts when he was a lawyer arguing cases in between his stance as the deputy and he would come and do interviews with me, and i knew him pretty well then. i have known ted olson who is not a justice, but i have known him since we was very young people in washington in the reagan administration. >> are there any stories that you can tell us to him arise it a little bit? >> they are all very human in their own ways. you know stories as well as i do, and i miss all of the ones who have retired and some who are not with us anymore. a new justice brennan pretty well by the time he retired. i knew him in his retirement and a new lewis pallet his retirement very well, and one of the most interesting stories i can tell you about lewis powell is that i was having lunch with him one day and after h

it depends, justice kagan, on what the manufacturer knows, and its understanding of the science. here, let's take justice alito, if we could follow your hypothetical a little bit further, suppose fda had approved this label, okay? all this language about stress fractures, that's now in the label. our claimant can't be pre-empted then, right? >> true, but what's bothering me is the approach that you're taking is, that in this particular area, in this particular area of medicines, i don't really see how we're going to benefit by 50 different states really giving different signals to the manufacturers, and i can see a lot of ways in which from a health point of view we're going to lose. that doesn't mean the law is wrong. it doesn't mean, it is just a question of emphasis, and here, we have an emphasis. the next page, from the one you cited, the fda says in 2010, fda's review of the data did not show an increase in this risk, relevant risk, in women using these medications. so there are indications in this record that they thought that it is more dangerous to put the label, to put t

i would like to address an issue justice kagan and justice gore such have touched on. we must distinguish between two types of confusion. on october 2010 when the fda ultimately decided in addition to whatever precaution section of these labels was warranted it rejected the proposal the morning include repeated use of the term stress fracture and fda did express the concern practitioners for whom the term connoted a relatively minor event might read it as understating the seriousness of the potential health risk of fosamax. that confusion needs to be distinct from the question, was fda confused by merck's submission? no reason they would think that was so. the joint appendix of merck in the introductory section of its proposal summarizes what it is proposing to add. and it is like the adverse reaction of marketing experience section, low-energy fractures that have been reported of which some have stressed insufficiency, in the femoral shaft. >> what pages that? >> 670. merck was making clear the language it was proposing to add to the warnings and precautions section a

that was a 5-4 decision, dissenting were justices ginsberg, breyer, kagan, and sotomayor. but the court refused to leapfrog over the lower fed appellate courts and said that the policy is going to remain in effect until the supreme court gets a straitforward petition for review from whoever loses in the lower federal appellate courts. >> woodruff: so you are contingent us, you're somewhat surprised that the judges chose to do this. >> i'm not surprised that they refused to leapfrog overthe lower federal appellate courts. that is always disfavored.wa the courts the reasoning-- the benefit of the reasoning of lower federou appellaterts. to allow the policy to go into effect while the process ges was a little surprising. certainly, there are transgender service members who will be affected by this. >> woodruff: let's talk about some of the other ruloingsay, or nonrulings, on guns. the justices have now chosen take up a significant case. tell us about that. >> all right the new york state rifle and pistol association is challenging new york city's premises license. tricts a li

the neo cons gravitating to control both parties directly now when we have bill kristol and robert kagan supporting hillary clinton and so on and this may not be reversible this may have a a longer trend than partitions and so then you can sort of the republican party is just grating to the democrats to black and i jump in here gentlemen we're going to go to a short short break and after that short break we'll continue our discussion on some real news today with art. is your officer. told you to get up off the ground or serbians. themselves on the sounds of them maybe. it is your wish to go away from your office or. the toys out of his crib. the obvious or did they kind of lunge for the weapon once missed and then what happened on tree swung at the officers hands didn't hit him i never saw any contact between the two and the kind went back to where they were so the officers back here there try again fifteen feet apart at this point and that's when the officer pulled out his gun and he did it on three. you know world a big part of the new lot and conspiracy it's time to wake up to dig dee

the neo cons gravitating to control both parties directly now when we have bill kristol and robert kagan supporting hillary clinton and so on and this may not be reversible this may have on a longer trend than partition is sort of and so then you can sort of the republican party is just like creating the democrats to black and i jump in here gentlemen we're going to go to short short break and after that short break we'll continue our discussion on some real news today with art. let melet so it seems wrong. but i'll. just don't. let me. get to say pal it just didn't come out to. and it didn't read it was betrayed. when somebody find themselves worlds apart we choose to look for common ground. welcome back to crossfire for all things considered i'm peter lavelle to remind you we're discussing some real news. you can let me go to demonize and change gears and we we see. online censorship are gaining a pace here we have this news guard app that will basically tell the consumer of news sites what's. truthful news real news as opposed to fake news but if you look at these the background of th

neo cons gravitating to control both parties and directly now when we have bill kristol and robert kagan supporting hillary clinton and so on and this may not be reversible this may have a a longer trend than partitions and so then you can sort of the republican party is just grating to the democrats to black and i jump in here gentlemen we're going to go to a short short break and after that short break we'll continue our discussion on some real news today with art. i've been saying the numbers mean something they matter the u.s. has over one trillion dollars in debt more than ten like hard times happy each day . eighty five percent of global wealth he wants to be ultra rich eight point six percent market saw thirty percent from august last year some with four hundred to five hundred trees per second per second and that coin rose to twenty thousand dollars. china is building a two point one billion dollar a i industrial park but don't let the numbers overwhelm. the only numbers you need to remember is one to one business shows you can't afford to miss the one and only . when i came back

the neo cons gravitating to control both parties directly now when we have bill kristol and robert kagan supporting hillary clinton and so on and this may not be reversible this may have on a longer trend that partition is sort of and so then you can sort of the republican party is just grating to the democrats to black and i jump in here gentlemen we're going to go to a short short break and after that short break we'll continue our discussion on some real news today with art. as a spy you'll have to really split your own personality into two you don't is the committed jihad just wants to live within me and then there is some who wanted to counter everything they want to do and then trying to dismantle everything they were doing so you have to really become a production you know to to fool them you have to follow your own family in order to fool them. going to want to. get. there so you'll hide away lost his boss because you got then you just gotta go . at anybody on a month all of those imposing but the pressure on us i brought with it has been a. joining us as you know but i was you k

the neo cons gravitating to control both parties directly now when we have bill kristol and robert kagan supporting hillary clinton and so on and this may not be reversible this may have a a longer trend that partition sort of and so then you can sort of the republican party is just grating to the democrats to black and i jump in here gentlemen we're going to go to a short short break and after that short break we'll continue our discussion on some real news today with art. as a spy you have to really split your own posts not authentic to you that is the committed jihad this that was the life that within me and then that is the person who wanted to counter everything they want to do and then try to dismantle everything they were doing so you have to really become a good doctor a note of the tools. you have to for your own family in order to hold the. welcome back to crossfire for all things considered i'm peter lavelle to remind you we're discussing some real news. you can let me go to demon out of change gears and we see. online censorship gaining a pace here we have this news guard app

i was struck by a quote written by a couple leading conservative thinkers, bill crystal and bob kagan, over 20 years ago, where they talked about without a broader, more enlightened understanding of america's interest conservatism will too easily deagain rate into the nationalism of pat buchanan's america first, masks a deeper self-loathing. what they are trying to get at almost a quarter century ago on the right and other writers like david brooks and founders of the weekly standard which you used to work were trying to get at this idea of american exceptionalism and greatness and we can achieve big things. jake, i guess reflect a little bit on whether -- i know you're optimistic by nature, whether it's going too much against the grain of our moment and, matt, if you could give your perspective on how you think his arguments would rest within c conservatism today. >> it's funny, i think my spouse and family would question whether i'm optimistic by nature, given that i'm irish. william yates said irish people, they have an abiding sense of tragedy that sustains them through temporary

i do wonder whether sort of the ascent is the factionalism, justice kagan saying we're all textualist now, is almost a normalization or legitimation of judge bork intellectual feast. because, and you can use it, tactical or an armed intellectualism as you set the battlefield. but you have to figure out the significance of the absence of a serial, or the sequence you described early on where he had all that, it's really arcane, can be arcing intellectual enterprise. at one point the wood been viewed as quirky but now it's normalized. i just wonder, that occurred to me as you were speaking. >> i think this is what some of the leading tech show sweeps in response. people don't tend to be methodological purist. this is part of a matter of emphasis and agree across judging. a couple things. number one, if you think judges are unelected and they have been put in place because -- but because they're following the law which of the most americans believe judges are supposed to just follow the law to the level asked in trump the policy preferences because the law is the law. that's a much more

. >> there are a lot of words there but i'm not sure there is an answer to justice kagan's question i will give you another chance because it's important to me as well are you using the word substantive into different senses? first with the apa sense and then the other traditional legal sense? you are conceding to your colleague on the other side it is used in thatco sense i believe? . >> it doesn't say substantive rule or standard but a change but that is a nonsense under your view. >> but we think in substance. i'm serious what it refers to the non- form it is meaningful but beyond that the words used in this section refer to regulations manual instructions with a distinguishing regulation from the subsequent things. >> again, there is a lot of words but i think you do agree congress uses that word into different senses? . >> we think substantive changes different from substantive legaln standard and i'm sorry i forgot the third thing you asked. >> statement of policy because that is hanging me up also. >> again frankly that is an artifact of the house version of the bill if you go

he worked on both just is evil amen kagan in jamel jaffer at george mason university and a former clerktice neil gorsuch. we are going to jump right in. you both know william barr came under scrutiny when he had an unsolicited 20 page memo to the doj last year, criticizing the mueller probe, specifically the investigation into possible obstruction of justice when president trump fired fbi director james comey, which is barr said was the right call as he wrote in an op-ed piece. barr also questioned bowlers pursuit of witness tampering by president trump. so we'll barr have to recuse himself from oversight of the mueller probe in order to get the ag job. you are up first. >> well, i don't think we can most afford mr. barr to recuse himself. looking at the guidelines come and there's not a base in the regulations for him to recuse himself. needs to exercise oversight over the investigation similar to what deputy attorney general rod rosen dean has done. he doesn't have to recuse himself. you simply let mr. muller proceed with this investigation. eric: do you feel comfortable he will do th

wrong to overturn that decision so how do you interpret that decision as grievously wrong justice kagan referred to it as a doctrine of humility and separate sovereign doctrine said over 30 justices have signed off on overtime you could do the headcount how many have opinions related to row. it will be interesting to see if the court goes one direction it could box them in a little bit like challenges to row. >> it did seem like there was a pantomime in that argument because traditionally a lot of people concerned about criminal justice talk about being nailed twice for the exact samece thing is intrinsically unfair but yet you have most liberals on the court have a problem with this situation and seem to find it statistically not a lot of instances it was a a problem. so maybe we will step back. historically, the supreme court seems to function most efficiently when it moves in the general direction of. of time that is said to be in the case of the supreme court and congress living in the same direction and there was time the court has been an odd with the elected branches from the thi

[laughter] justice kagan: -- or with the case of the soundtrack itself, we have never put it up and changed the music to what -- fit what was on the screen. david: i tried to figure out how you might have done that in vietnam, and now i know and i can win some bets from people. just as a real quick digression, you talked about fundraising. forgive me for that aggression, i have to share a short personal story. when i was a kid, i was going to be a rabbi. my dad was a first-generation american, religious jew from russia. one day i marched in and said i will not do it, i will not be a rabbi. he said, that is interesting. how did you decide? i said, i found out rabbis have to do fundraising. i will never take a job where i have to do fundraising. [laughter] david: live and learn. i want to bend this back to libraries a little bit. through our extensive research department, we found out that you told a graduating class at stanford university -- my kid is a stanford alum. i will not share the total amount that it cost to do that. it is not really that important is it? ken: a lot of fundraising.

supreme court justice elana kagan introduces him. the supreme court historical society hosted this 40 minute event. mr. joseph: good evening, ladies and gentlemen. i am greg joseph, chair of the board of trustees of the historical society. and welcome to our third lecture this year in the leon silverman series. professor capozzola is going to be speaking about the selective draft law cases in a lecture that he titles "body and soul," and you will understand that afterwards. let me begin by asking everybody to turn off their cell phones, not just put them on mute. it will affect the sound system. and that includes your fancy watches that are really cell phones. i want tgi

i voted for sotomayor and kagan understanding what i was getting, so this decision by reid and schumer come back to haunt them. but i am dead set on making sure it is a conservative nominee. elections have consequences. the rules of the senate were changed not by me, by them, and we had to do it on the supreme court because they would not give us any votes to nominate anybody. and kavanaugh was a fine man. they tried to destroy him. all this is going to come back to haunt them one day. chris: yeah. let me just real quickly explain that when the democrats were in the majority, majority leader reid changed it for judicial nominee short of the supreme court and for cabinet appointees, went from the 60-vote margin to 51, and then the republicans did it for the supreme court. senator graham, thank you, thank you for your time -- >> i just say one last thing? chris risk yes, sir. >> we don't need one democrat to replace a liberal justice, and the reason that's the case is because what harry reid did, what he set in motion. chris: always good to speak with you, sir. okay. i guess you think it

justices stephen breyer, ruth bader ginsburg, , sonia sotomay, and elena kagan dissented.mp first announced the ban on -- in 2017, but two lower court junctions blocked it. most will be permitted to go into effect as the ongoing lawsuits make their way up to the supreme court. while the court lifted the two injunctions, he did not rule on the legality of the ban itself. the pentagon praised the court ruling, stating -- "dod's proposed policy isis nota ban on service by transgender persons, it is based on professional military judgment and will ensure that the u.s. armed forces remain the most lethal and combat-effective fighting force in the world." by chase we are joined strangio, staff attorney at the aclu, which is challenging the trump administration's ban on service members who are transgender. chase strangio, welcome to democracy now! talk about this decision. >> first, i want to acknowledge how heartbreaking it is to once again have the supreme court essentially greenlight apparently cruel and discriminatory policy coming out of the trump administration. this is dis

one of the defining moments was justice kagan's confirmation hearings when she was asked about textualism, she quipped we are all textual is now. there were times when he formed coalition for originalist like crawford wishes washington or trinity versus new jersey were functionalist arguments that with this historical formal and originalist argument on statutory interpretation, he has been able to really focus a lot of people on the way as they said that order of battle. let's start with the meaning of the individual words that we will broaden out to looking at the structure of the statute. is look at the inactive history of the suggestive history necessary and not really looking at through the lens of policy or free-floating purpose untethered from those sources of what is the manifest purpose in the words of the statute actually doing here. you will see conflicting studies here about how much courts huge legislative history. they may be a decline in its use, it's not clear but there is more skepticism in the air. i think even among those who do use it there is a sense about being somewh

i voted for sotomayor and kagan understanding what i was getting so this decision by harry reid and chuckchumer may come back to haunt them but i am dead set on making sure it is a conservative nominee. and elections have consequences. the rules of the senate were changed not by me, by them, and we had to do it on the supreme court because they would not give us any votes to nominate anybody and kavanaugh was a fine man, they tried to destroy him. if all this is going to come back to haunt them one day. >> chris: let me just really quickly explained that when the democrats with the majority, majority leader harry reid changed it for judicial nominees short of the supreme court and for kavanaugh appointees one from the 60 vote margin 251 and then the republicans did it for the supreme court. senator, thank you, thanks for your time. >> senator graham: may i just thing? we don't need one democrat to replace a liberal justice. and the reason that's the case is because of what harry reid did. what he set in motion. >> chris: always good to speak with you, sir. okay. i guess you think it was o

justice kagan referred to it as a doctrine of humility. and that, the case of separate sovereign stocks and, one that over 30 justices had signed off on overtime. we could do the head count on how many justices have signed off on opinions related to roe. so, it will be interesting to see if the court goes in one direction and gamble. whether that might in some ways boxed them in a little bit on cases like challenges to roe. >> it certainly did seem like there was a kind of pantomime going on in that argument, because, traditionally, a lot of people concerned about criminal justice think the idea of being nailed twice for the exact same thing is sort of intrinsically unfair. and yet, you have, really, certainly most of the liberals on the court seem to have little problem with this situation. this particular case. there are statistically not a lot of instances where it was a problem. at least in the circumstances that it alleges occurred. let me ask, maybe we will step back a moment before we start hearing questions from the audience. histo

another book that influenced me a lot is by robert kagan, the jungle grows back, in which he says the last 70 years were an aberration. that is not the norm. major countries go to battle with each other regularly. and free trade is not the norm. a liberal world is the norm. we are in an extraordinary period. the u.s., as a hegemon coming out of world war ii, there were two wars separated largely by the great depression and the results were putting into place that international economics we have, that is not the norm in human history. i'm with him part of the way. what he says, if you don't tend what you have it tends to deteriorate in terms of liberal trading order. i think there is a path forward. i think that many important people have seen a path forward. and that reform is needed, and mostly recently evidenced at the g 20 ministerial in buenos aires in which they said that the system is currently falling short of object lives and there's room for improvement. we therefore support the necessary reform of the wto to improve its functioning. a year earlier, before buenos aries minist

the term now and how it's going to be that they are dead and that they'll still continue to protect kagan but we know that you know the al-shabaab to try to establish the islamic caliphate with kenya need an increase. of attacks by terror that the terror group in two thousand. when kenya went into somalia to protect its borders from these very safe. but for now we're hearing that the government is toast and they're ready to protect the canyon people and is it this can kenya action in somalia is this why al shabaab which is based in somalia keeps it attacking kenya. it's one of the main reasons if you look back in two thousand and thirteen we had a series of attacks by al-shabaab which caused the kenyan government to go into somalia and even to send every incident that has occurred we have had witnesses say that the people who are these militants who attack know me say that they want kenyans out of somalia that they want them to to to to retreat back even to the to join i mean this is one of the main reason that they say this but also to create the caliphate. fourteen bystanders and unspec

and i was struck by quote written by a couple of leading conservative thinkers, bill kristol and bob kagan over 20 years ago where they talked about without a broader more enlightened understanding of america's interest, conservatism will to easily degenerate into the pinched nationalism of pat buchanan's america first. [ laughter ] where the appeal to narrow self interest mask the deeper form of self loathing. so, but what they are trying to get out, almost a quarter of a century ago on the right and other writers like david brooks and the founders of the weekly standard, which used to work were trying to get at with this idea of more optimistic ideas of american exceptionalism and greatness and that we can achieve great things. and to try to ingrained the sense of optimism. so jake, i guess reflect a little bit on whether, i know you are optimistic by nature but whether it's going too much against the grain of our moment, and that if you could give your perspective on where and how you think this argument would rest within conservatism today. >> is funny. i think, my spouse, my family wo

more successful in terms of textualism more generally in one of the defining moments was justice kagan's confirmation hearings which asked about textualism she said we are all textual lists now and there are times a new form coalitions for originalist them in cases like crawford versus washington or versus new jersey were they stick with these historical informal and originals. but on statutory interpretation, he has been able to focus a lot of people on the way, that order and let's start with the meaning of the individual work and will broaden out to looking at the structure of the statute and from there let's look at the enactment history of the statute cannot the subjective legislative history necessarily. and not really looking at it through the lens of policy or free-floating purpose untethered from those sources of what is the manifest purpose in the words of the statute actually doing here. you will see conflicting studies hear about how much courts use legislative history at all. there may have been a decline in its use and it is not clear. but there is more skepticism in the ai