Transcripts For CSPAN2 Key Capitol Hill Hearings 20240622

Fortunate to have a military leader such as you serving in a time of great peril. I want i want to ask a question of you if the objective were to destroy isys, not to we cannot a great but utterly destroy what would be required militarily to accomplish that objective . It would not be possible to destroy. I do think the military aspect is critical. If the timeframe i suggested is not feasible feasible but let me ask you a followup question what will be required to destroy isys and what timeframe is necessary . If that were the objective what would be required to accomplish it . Clicks from my perspective today this is a longterm endeavor a longterm endeavor on the order of years, not months. And what would be required to do that in whatever timeframe is necessary . From military perspective we need to take action to deny sanctuary where everything takes root that will require us to build local forces in the Partnership Capacity with local forces that would be the defeat mechanism. Mechanism. You would have to have Effective Governance so that you have the conditions set for longterm stability or isys could not get traction will address the foreign financing for they get their money as well as economic assets, assets, would have to address the movement of foreign fighters and probably the one thing we need to do is undermine the narrative and discredit the narrative clicks in your personal judgment are you concerned about the rules of engagement for our current use of air power that it is overly constraining the effectiveness . Clicks senator klein am not. We conduct personality and planning and discrimination and execution in the thing were doing now is ensuring we dont have civilian casualties which practice supports our narrative and gives us the credibility we need to be successful longterm clicks in recent days the administration has informed congress that we are arming the kurds something i have called for for a long time. I spoke this week with the senior kurdish leader who reported that the commanders on the ground, are are not confirming that. What can you tell this committee about the extent to which we are providing serious arms to the kurds and it is actually getting to them rather than being bogged down in baghdad clicks sen. , i would agree with you the most Effective Ground forces in syria and iraq today are in fact the kurds. Kurds. My understanding is the issues associated have been addressed in their now getting there now getting the Material Support that they need. If confirmed i will go over there visits, and make sure i am able to make my own personal in my Opening Statement cannot we have the most Capable Military force clearly rooted in the minimum and we have. It is not something i would be complacent about. I have concerns about how horribly have been running our men and women. We have a plan where we wanted to have a wonderful redeployment ratio which means are forces the void and allowed us to get adequate training take care of families command to be a sustained rate of fire. Many of us are at or below 01 to two deployment the home for less than twice as much time that continues on and has not affected the families and our ability to train across the range. If confirmed this will be one of the areas i focus on. I think i think i have responsibility to lead the men and women in uniform. Articulate to our as well as the executive branch Material Support they need to remain the finest fighting force in the United States. It bothers me greatly if our young men and women dont have confidence. I can tell you, if confirmed that will be an issue a priority for me. Again the trust and confidence and let them know that they are properly represented and we recognize where asking them to do a lot. I can fit that is exactly what i will i will do. Thank you. Sequestration uncertainty which has contributed to this drop in morale clicks chairman thanks. I should have mentioned that there is a tremendous amount of banks driven by the uncertainty about how big the force will be and will be have the equipment necessary to accomplish the mission. I do think that sequestration is a factor clicks senator a followup question. Thank you. I just want to get back to the issue of the militarys role in relation with congress. Do you think it is an Important Role that we have to make sure our services dont replicate missions and core competences quakes i do. Let me provide a quick a quick example. One of the Core Competencies as largescale airborne units that can employ on a moments notice. You you think that is a core competency . I do. A military general testified in front of one of the subcommittees i i love putting troops and helicopters on naval shipping for expeditionary maneuvers. I would associate with that of the no space marine corps. Clicks with that surprise you . Clicks it would not. Not. I have seen that description. A Redemptive Mission and not a good use. Given the shortfall tomorrow speaking now is service to give it a priority out to go to the United States marine corps. Would it be appropriate to try to limit such redundancies the making sure military funding goes to core competency . I do agree. The congress is a critical role. At the joint capability and capacity. Clicks thank you. Clicks thank you mr. Chairman clicks thank you for that followed question. Clicks thank you. I apologize for getting back so late. I was an appropriations markup. The servers and your willingness to continue to serve. After watching you before the crowd and hearing from them how impressed they were forward to the impression you will make as the new chairman of the joint chiefs. I wanted to follow up on senator workers question about europe in the concerns in europe because i recently returned from a visit to poland have you. The nato exercises. And her extreme concern about the potential for prudent to engage in asymmetric instigation in the baltics and other Eastern European countries. I am concerned about the failure today of europe to commit to the 2 of gdp for defense spending and wonder if you have thoughts about what more we might be able to do to encourage them clicks sen. I think it is important that our nato partners bear their share of the burden. That is an issue that has been addressed. They came out of conference with a commitment for nations to meet that 2 percent. Given the shortfall capabilities and capacities and areas like intelligence strategic left and so forth, it will be critical for our partners to develop the capabilities and capacities. I would also add that when our nato partners are properly resourced they have capabilities and capacities they can be integrated to great effect. I think the alliance can be a very effective force for stability in europe as as well as for out of europe operations. I agree, and hopefully we will see that commitment follow through on. Clearly threat continues. Our Eastern European allies are concerned. I want to ask you about you talked about the deployment pressures on our military. I wonder if you could give me your perspective on the appropriate active to reserve ratio and the importance of the National Guard and reserve and continuing a military mission that we have clicks sen. I can. One of the of the things we have to do is balance the consent of employers and families with the willingness and desire for a guard and reserve to continue to serve and whats more the operational and strategic sense. There was in the past the sense that the guard and reserve would be something in the case of a major war that we would mobilize. I think we found today of the guard and reserve is much more operational in that they are useful or when it comes to stopping isys the stated goal is to degrade and destroy. What can america expect . I think you will see an expansion only across the middle east but outside and have seen elements all the way over to afghanistan. And expanding power quakes expanded in terms of geographic location. I have not yet included they have expanded in terms of capability. If we dont stop these guys we can expect as me. Clicks sen. Come i think it is fair. It is exactly what i said. I dont want this analogy, you will have to stop these guys. Is it fair to say they need to be viewed as one battle space . Absolutely. The enemy does not respect the boundaries. Can you envision a a scenario with Regional Army go into syria and fight isys alone the sod off the table . Clicks senator, it is hard for me to see that degree of integration given the divergent interest, but i can see that would be an effective way to deal with this. My question is if you did not put removal on the table it will be hard to get them to justify joining. Clicks thats right. Most of the countries you spoke about have a a shared goal quakes would you agree that as sods presence is a magnet for sunni extremists . If not be a proximate cause, certainly one of the primary drivers. If we go down to a thousand and 2017 in afghanistan to be substantially is those are Counterterrorism Mission . A significant degradation would we lose our eyes and ears along the afghan pakistan border . We would. Would that would create a lot of risk to the gains we have achieved over the last decade if we did not have those in Counterterrorism Forces . No question it would create risk. When it comes to 63 Syrian Army Troops being trained under the current regime would you agree that it would be hard to recruit people to go into syria if you dont promise them protection from a solid because a solid because if they get any capability and sought with assume that capability would be turned on him one day day, and he will not sit on the sidelines and watch a force majeure and development. I agree with that assessment. The most logical consequence is that alassad will see them as a threat to his regime and most likely attack clicks i agree quakes and it would be immoral to put someone in that position knowing that is coming their way without capability to defend themselves. My assessment as if we trained the moderate Syrian Forces we ought to also provide them with the wherewithal to be successful. If this war continues to do you worry about stability . I do. Do you worry about stability in lebanon . I do. The consequences of going into syria with their Regional Force and all the problems associated have to be balanced against the consequences. I agree quakes in your view over the long haul is it in Americas National security interest to do things necessary to the grand destroy . I do believe. Do you agree with me that whatever Regional Army we may form there are certain american capabilities that would be outcome determinative and it would be in our National Security interest to provide them clicks particularly i agree with that in the case of aviation Intelligence Surveillance reconnaissance a special a special operations capabilities. If a soldier on member of the military falls trying to destroy isys would you agree that they died protecting the homeland . I would. And that is the reason some of the may have to go back clicks there is no question 3500 inside and those in the surrounds checking our nation clicks come blessed. God bless you. Best of luck. Thank you. On behalf of the chairman let me thank you for your testimony and your service. I now adjourned the hearing. [inaudible conversations] [inaudible conversations] [inaudible conversations] quakes basically undo both of those in go back to to current policies allowing those black suit but a grave sites and for the sale of merchandise. That came merchandise. That came up and debate late on wednesday evening. Thursday morning comes around and speeches start having. Tell us what happened. About midmorning republican of the bill. He got a lot of questions basically saying he did not want the flag to become applicable. He knew he knew it was becoming a distraction and pulled it. He did not pull just the amendment but the whole bill itself. We did not get that. From your perspective was democratic taken by surprise by this amendment the reaction on thursday morning . Managing debate. She said on wednesday night and thursday morning she was surprised and taken aback by the fact that the amendment would come up so soon. They really rallied around this issue. They had issue. They had a series of speakers ready to go. They had a printout of the flag they used and are slamming both the flag and the decision to take up the amendment. So they were ready to go clicks you mentioned briefly the speakers reaction and you tweeted about that. I believe its time for members to sit down and have a conversation on how to deal with this issue in a responsible way clicks we have not gotten that yet. If this is something longer lasting story he may have to lay out what out what he means. Means. This whole issue has blown up around the country. A a lot of states are considering their flag displays. It has been an issue that has come up on the hill a couple times and it may be something that there needs to be a sort of they are reckoning on it sometime. Clicks on that issue democrats are looking to have the mississippi flag which has the confederate battle flag in it removed from at least house buildings in the capitol complex. Where does that stand . Clicks that was the amendment put on the floor essentially forcing republicans to vote on whether or not to remove that flag. Republicans said no. They did that they did that with another democratic resolution on the same matter earlier. There has been no movement she movement, she caused a bit of a ruckus on the floor there was a debate. It was more of a protest. Republicans were not going to attack but it allowed democrats to go after republicans on this issue. Clicks clicks back to the politics, the amendment was proposed. He released a he released a statement saying he was asked by gop to put forth this amendment based on the request of some seven republicans. What was behind that . Seven republicans, couple have come out to say that they were upset. Democratic amendments were attached to the bill. I was a bit of a concern that there may not they may not be enough votes to pass the bill if republicans and i get the chance to vote on amendments. Republicans were upset that they were attached to one of the chance to vote. He basically said i put up this bill or this amendment for vote but it was something the wanted to push is there any indication that the timing of this Governor Haley signing the bill in the law in the afternoon on thursday the timing of this vote would have happened at about the same time back. Not necessarily. Questions and the issues they addressed really about the issues that congress dealing with. These two amendments were attached on tuesday and he wanted to repeal an undue on thursday, i dont think its anything to do with what happened in south carolina. The truth is they are not done with this issue. Midtolate the final consideration. What happens and it finally comes that amendment is still attached. That is the interesting part. Defense to the Environmental Protection agency because of ways to to go about blocking Obama Administration on the rules. This really puts them over the top. Anyway, i know to hell no. So they are going to have to resolve the flag issue. They arent are going to have any hope democrats. Stefan henry with the help. You can read more. Appreciate you joining us clicks thank you. Clicks the Us Supreme Court wrapped up work with the summer coming on cspan2 a look at some of the cases decided by the courts term. Then court system. Then a conversation with california congresswoman loretta sanchez. Clicks we will re air these programs sunday evening. Also radio talk talkshow host on Hillary Clintons second run for president. Saturday night starting at 8 00 eastern 8 00 eastern congressional commemoration of the 50th anniversary of the vietnam war. Good morning. Welcome. Strategic communications heritage. Cosponsored us. I want to introduce the moderator first panel today. The director and senior fellow at the Heritage Foundation meals under where he writes and speaks on a variety of law related topics. Prior to coming he worked in different positions including a partner as an assistant United States attorney and Deputy Assistant attorney general. Also served as executive Vice President and director of world antipiracy antipiracy operations with the Motion Picture association of america and distinguished practitioner and is a resident the from law school and general counsel of the Us Commission on International Religious freedom. [applauding] and different story. They experienced significant and surprising losses and some major cases. At least two of the scribes perceive a discernible leftward shift. We have assembled we have assembled an excellent panel to discuss some of the major cases each of which is argued many cases before the United States Supreme Court and are considered among the elite group. I will introduce them each briefly from afar to briefly, and then we will begin our discussion. Time permitting will take questions. My. Left is a partner at jones day where he focuses his practice unconstitutional appellate civil rights civil litigation against the federal government. Mike served in several senior positions including Deputy Assistant attorney general and Deputy Assistant attorney general of the office of legal counsel. He has counsel. He has argued several cases in front of the high court. This past term King V Burwell and every federal Appellate Court in the country. It is left is john elwood who argued to cases argue two cases this past term including aloneness versus the United States partner where he specializes in appellate litigation. Prior he served in a number of significant positions within the Justice Department including assistant solicitor gen. And deputy the office of legal counsel. He received several awards including the attorney general award for Exceptional Service award for distinguished service. He also clerk for judge Daniel Mahoney and Justice Anthony kennedy. Through to his left is andy pincus who argued the case this past term, partner at mayor brown where he focuses on appellate litigation and advocacy. During the Reagan Administration answer that assistant solicitor. And. And he is a cofounder and codirector of the year loss cool Supreme Court alicyclic lets get right into it and talk about one of the most controversial cases the samesex marriage case. Windsor, the United States versus windsor and found there was a constitutional right to samesex marriage which is the way it went down in the Supreme Court. My thoughts and no particular order the opinion no one is great surprise, written the majority of opinions in the libya cases expanding the rights of gays on wilmer versus evans. Lawrence versus texas and windsor. And you know, like many kennedy opinions on big topics it was long on rhetoric and short on traditional legal analysis. I do not know whether that is by design because there was a term. Kennedy would say this is a teaching case and they did not know if those direct the public law students command i would not be surprised. He has deemphasized using footnotes and opinions. This this is a case that is accessible to laypersons and i wonder if that is by design. I was telling guys that i was on a wedding recently, an opposite sex wearing where the efficient quoted windsor. I think this is an opinion that will displace windsor. The opinion well. It does not talk about to players of different layers of scrutiny and there is very little on case law. This case is important not for the holding but how it didnt. The court is waxing and waning on how specifically you define rights how rigorously you have to tie the suppose it fundamental rights to an historical practice. High water mark was footnote six michael h versus gerald the which was only joined by two justices. Oconnor and kennedy did not join it. We refer to the most specific level at which are relevant tradition protecting or and i am protection to the right can be identified. Obviously to get you would have had to have a very specific tradition of samesex marriage. In washington versus bloomsburg the physicianassisted suicide case which kind of set the standard. And it emphasized how important it is to tie it to the political practice to make sure that due process can be steadily transformed. And they said there are two primary features of the analysis, the due process clause specifically protects fundamental rights and liberties which are deeply rooted in the nations history and tradition and implicit. This took a this took a big step back. However you pronounce it the case took a big step back. This is not unusual for kennedy opinions. He does opinions. It does not explicitly overrule. Frequently they would ignore conflict or try to paint them as consistent with the prior case law. But law. But here they said sometimes we process requirements for courts to exercise reason judgment. And i think that this is one of the biggest things. Things. It really kind of decoupled it from historical tradition or at least deemphasized. Here is the favorite paragraph. The generations did not presume to know the extent of the freedom and all its dimensions. Interested the future generations chart to enjoy liberty. Liberty. Of course what we mean by learning meeting who is learning it matters. Moving on i think that the third significant thing is what does this mean for religious liberty . Even though Justice Kennedy himself put language in their suggesting that we have had to respect religious liberty, i liberty, i am sure most of your will aware that that argument when the solicitor general was asked the question what about religious institutions they dont recognize samesex relationships what does it mean for tax purposes . Said there was no question. This is the next battleground. Even though Justice Kennedy im sure feels like it is not worried about what this will be used for. You know Justice Oconnor famously affair lucy busy standards has not been happy with what has happened. She left the court. I think Justice Kennedy my reaction to what his written in cases has been displeased with the casey standard and its application that it was applied more liberal. You know when he was working on the joint opinion so it is an interesting opinion. Opinion. It is significant in the future. The samesex marriage advocates have the limit. Anything . Well, i am just saying a couple a couple of things. It may not be a coincidence. I do think it is i totally agree with john that i think the treatment is important part of the opinion and the boldest step what is interesting is in that paragraph and the parts of the opinion that proceeded, he does try to route that a little bit and original is. The opinion his bond or amplified it. A a conflict out there in the world of scholarship. What was original intent cuemacks plastic view original intent means or the framers views of the reach of these rights. Evolving on the more Progressive Side of the spectrum from her original intent is actually the framers view familiar with courts, writing broad concept but actually saw this as a commonlaw kind of authority that would involve in their time and limited. You will see an increase battle to defend and attack the Justice Kennedy approach and in the majority of the courts approach. Lets turn to a totally different area. Congress congress and the president faced off and determine the case involving israel. You know, for an know, for an issue that has been hotly litigated for the samesex marriage and lg bt rights to an issue that almost never his litigated in the this is an area of law and there is lots of learning based on opinions and the posturing of congress. These debates rarely it in the court. The george w. Bush administration. And both the administrations refuse to enforce the statute on the grounds they are constitutional power rendered that statute again person born in jerusalem commenced litigation that first went to the court three years ago. The court said no and direct the dc circuit to decided on the merits. Some some people thought the court was depriving itself an escape route. Would not be able to use the political question if they concluded it would have been desirable seem to be a lot disconcerting noises they were being forced to decide something that had a lot of Foreign Affairs and political visibility. Obviously obviously taking sides owns and controls yours is politically loaded question. In the court did address the merits and so he was right. Justice kennedy writing for the majority in the chief justice of the of a little bit of background framework for deciding these questions will set by Jennifer Jackson he basically said there are three ways this can run. On the same they want the same thing the president s power strongest. The pres. Is acting alone he has some authority. In the present is acting contrary the harvest time hardest time for the president s power to the upheld. Only if only if the presence power exclusive and conclusive. President. It has been thought the president is almost always going to lose. Some of this at the present facing down congress successfully. The the court said here are the president alone to make the decisions what foreign powers recognized cant be forced to contradict decisions with some formal document. Dangerous dangerous woman israel would contradict the president s determination. Victory for the administration of the frustration also suffered a bit a bit of a defeat. As hold opinion though the context in which president is authorized to do something. That opinion had some Strong Language that the Justice Department quoted the scene of the president have broad power. Justice Kennedy Catholic is the case in category one. Future sessions ability to present so the nation and its external relation quoting chief justice marshall. That whole argument goes away. Administration on this panel say relies on history. It history. It is actually quite similar to last terms of just the start existence of the text of history of life on history. Concurrence really say he still believe this was a political question. You have to his influence would seem to be there. This is thomass concurrence is more pro. The way to interpret the constitution• Pacific Power is mentioned as the presence. A very broad view and surprisingly all three people who worked in the executive branch to very harsh view with the majority rule the pres. President has been permitted to defy statute. See the opening of the scope of executive authority and how to reconcile the conflicting claims in the Foreign Affairs area. We we dont see a lot of cases so its hard to say that this was ball a lot of litigation interesting to see how the alignments shakeout differently. As you know, obama care was before the court. In our discussions you said you saw connections between that case and the Texas Department of housing and Community Affairs Fair Housing Act disparate impact i would like to discuss both. Heres retrenchment. I want to discuss the case talked about her formative experience and was getting at this issue. More importantly with what you saw is a huge step backwards in unanimous in context. Understand the context. I started law school and 79 with the case which involve title and the 1964 Civil Rights Act. What is. Forced Labors Office of the ccp. He he went to court and set up the statute. You cant. Cap denying Employment Opportunity because of race. You cant discriminate to which the majority of the courts so were not going to allow a couple of words and statute to be interpreted. The overall purpose is to help minorities. Next line lets face it you are going are going to ignore the plain meaning of the statute that the overall congressional purpose. Justice Justice Rehnquist wrote a very famous dissent started off by saying this decision was in 79. Big brother has come down until the populace the words have no meaning. That time i got interested in this question in another similar case directly relative to the texas case. And again you cant discriminate against any individual because of race or sex. And some members of the Supreme Court like the decision they made about banning discrimination against any people on the basis of race so they changed it to say against non minority individuals and then you must to do with under the test. There is no difference in proportion to the availability of minorities that has a prohibited discriminatory effect. So what you see is the opinions that only favored groups are treated equally but that now that is turned into a right to proportional representation on the business necessity. And with a basic american notions and i thought in the subsequent theory going along way to the judicial revision of statutes on those of enacted law. How was true in does precisely lake whether the majority opinion said to have the natural meaning that a broader purpose was to give subsidies. Precise facts the only provision that the subsidies are available for purchases exchanges established by the state under 30 beloved 1311. What if there was established by the federal government . The state means state which is not a complicated question. But it was for those six members of the Supreme Court and to analyze of donny weber that to provide that language i will not walk you through the ways but to adjust have that dissent what that majority was doing but then i will make three general points in addition to what justice pallia pointed out. But that is not a case because they did not delegate to deal precisely to be on federal exchanges so the promise of the statute is that congress made this decision to say you will have subsidies established by the federal government by writing the words he will have some cities established by the states. To make ted decision to say precisely the opposite you can use the majority opinion of some explanation people intent would have said the opposite in this is all a big mistake and we did not intend but nobody can explain it if you did not intend why would use that for relation . Then to save ambiguity and then to pretend there was any anomaly but then for the Affordable Care act with the language on this seamless web. [laughter] with the qualified individuals to transport this back in this case. The notion of a qualified individuals provision but i dont even care why would you transport that over . And that makes no sense. Just because they said it established by the state but those other provisions dont tell you that much. But to look at those other provisions to figure out what it says was with my 36 b and so anywhere in the Affordable Care act that is not terribly daunting. So with this legislative masterpiece so that the judiciary has free rein to do whatever they want. This is not the debate between people who thank you should were born dash looking words in isolation now of the statutory context to understand the purpose we could have emphasized more to look at the words in the context because that is precisely what they said that it makes it clear to deal with subsidies with the majority opinions that this was a strange place. But the context makes clear section 1311 the strongest possible into have the states run the exchange. 1311 tells you why they did that because they needed to incentivize states and the rest of the statutes because when they talk about territory with the exclusive provision you will treat this as a state to change that is not bound in this provision. And with that policy can tromp the purpose of this statute that is clearly with the majority opinion did. And then the broader purpose wherever we want to was the key decision and then if there is sitting in the statute anything with the legislative history is somebody said yes 31 subsidies. Here for all Public Policy we will not see anything reflecting back. The other thing is any explanation that the states will run the exchange. To try to pretend the subsidies will be available on all exchanges because thered be no incentive for this thankless task. So we return full circle that this is or million because you saying descriptions that is contrary to the statute that is the of e jut here are not invokingni anmng because you looked at said judges own views of what they think is the policy. We think it is good policy to help minorities but they decided to do it in a way we do not discriminate against giant non minorities. But it also wanted the states to run the exchanges which is why of the condition. Nobody disputes with they really wanted medicaidni for needed health care but they condition did they want them to have action with that same judicial override we got to was stage where literally with the budgetary issues unless it was done by people to have some accountability with the tax regime employer mandate to impose tax credits to be affected by a representative government. Because it merits brief discussion but title eight which was enacted four years after the 1964 Civil Rights Act says you cannot deny housing or discriminate because of the other prohibited criteria then texas said because you cannot treat people differently because of their race. The majority response was that okay so people in congress probably did not know to discuss the words the fact that they had provided the basis with the Fair Housing Act but as they say that what we thought was a vestige of the 70s with the magisterial purposes to says Justice Renquist said the orwellian enterprise to rewrite the law as for those elected by the people and accountable to the people. File will spend a minute on this because they say you just be a fuddyduddy but this is the essence of popular sovereignty but it is usurped the legislative function to make those five unelected lawyers establish National Policy from what those elected representatives have done. And that is us definition of charity. Is a completely perverts the judicial role. So if you play by the rules or read the law as the states to, you but if it is the policymaking body to argue the same policy that went into whatever legislation was enacted then there is no way to get beyond the political system because the judiciary is another stop along the legislative process so not ready violated something or if they keep you are a nice guy or a powerful corporation so that is to do those protections what you are entitled to be another branch of the legislative form but that first judicial role has complete disrespect whenever you hear debates about the opinions solely about the policy results rather or not the approach is consistent with a separation of powers that is my june 20 fed, 2016 was a sad orwellian day and the great port jurisprudence and to Pay Attention and with this analysis. The inshrined you is really not a nation of laws and you have to appeal to the policy preferences not to those that should form their judgment as a gigantic set back. I knew there was a highrisk. But lets see if we can get it a couple more so the court decided criminal law cases having to do with the Death Penalty also to do with one of the cases that you argued with mens rea. You the was the Amusement Park worker with his wife of 70 years took there two kids and dumped him. Be an american so he shared it with everyone on earth so he would pose to facebook some things were styled as rap music in said enough bad beijings about his wife schaede data protection. Personally i concede there was a more restrained tone. And to think about shooting up a kindergarten believe it or not he got a light combat. Which was an indication people knew he did not mean that literally and said that things about local police and eventually the officer came to arrest him with the prevailing view of nine of the circuits have adopted the view as the court would want to recognize and negligence standard if you Say Something reasonable person would think is the thread is of felony and the prosecutor said in a closing statement doesnt matter what he says that i made a. 50 times in the brief and the chief justice who wrote the opinion finding for my client on the eight one basis encoded a back to west now i find that gratified some now widely repeated 50 times in briefs. But it was litigated nor unconstitutional basis saying the constitution required to have to be higher than negligence and under the penal code it could mean to threaten someone someone that you know, the person will take as a print that is the only issue that what we had petitioned on as a clinic had petition in earlier on a constitutional basis and on the statutory argument. We did not want to raise it. Per with that statutory argument but lo and behold to old dash statutory argument the agreement to the oral argument as was spent on the constitutional issue so of course, the court decided on a statutory basis. [laughter] but all these cases between the negligence standard of a couple questions from Justice Kagan and maybe a followup question with a recklessness standard. All the court wound up doing was saying and in addition to. For the purposes of the statute to have some sort of intent it would not cross recklessness off the list. The onus that it took the third longest to decide. When it is the h one decision with the concurrence from Justice Alito and a dissent from Justice Thomas you figure Something Else happened and i presume there was a danger with on the recklessness grounds. In a when the papers of the court are released and will not live long enough to see Justice Souter pain from by to see what was going on is there was a recklessness standard but there was an early stage votes for negligence then to go to the Third Circuit but to be like the conservative Justice Ginsberg most are happy to answer the question to ignore the case but Justice Alito likes to write the brief and he did a very good job with this issue how will it was preserved so it will be interesting to see what happened misheard. But mcfadyen was the case to send us signal to be a serious enough crime. So with the First Amendment case and to have a rule whether they cannot personally solicit Campaign Contributions to find the committee who are the solicitors in to be the treasurer of his or her community to write thankyou notes to contributors. And florida took this rule not just to ban with similar solicitation for those that ask for contributions and then for posting the letter as it was up personal solicitation. So based on and the jurisprudence which im sure people are familiar with whether the ban on speech was constitutional. And a tough opinion to say this is a limitation on speech and it is content based if youre asking for money but it satisfies strict scrutiny and i think most impartial observers who have read the opinion concluded this was of variant of strict scrutiny. So the four justices who have dissented almost all of the decisions and are happy to join the chief justice justice, joined him to say essentially that judges are different we have to go after the integrity and it is bad for judges to ask for contributions from their supporters so if they will know about those contributions but my view that we have said this in oral argument in addition to the technical First Amendment reasons there were two Important Reasons why they did not stand up for it is a sham that we will attract people to think that judges are not involved but dont worry it will just appear that way because that is a good thing and second, which Justice Scalia mentioned in his dissent was that this isnt actually a rule that favors the establishment. It will not be hard to find a prominent lawyer who was on your committee who can effectively go out to get contributions. But if you are not that well connected, you may need the personal touch to understand why your campaign is important so this is a rule that was propagated by the American Bar Association about the judicial establishment. What this case shows is that context increasingly matters with the First Amendment jurisprudence. The other two cases was walker with the First Amendment also lost five four and many people believed the argument was on the license plate of government speech or the person whos car is in many people believed it is a hybrid but they put it into the governments speech box because then they gave him power in the third case, was about municipal finds where the First Amendment aside one and content based speech they did apply scrutiny with different size rules and that was the ideological sign or a commercial synar directional sign the court said it fails but the context was the was clear from the record was being persecuted so it could find a way to get the science up the ordinance would change so in all three cases the judicial and legal establishment worried about government power to regulate signs or license plate programs or an ordinance were there is discrimination that the context mattered and the analysis came later. Very quickly to see it is all about context i prefer there would have said they are different and recall that under inclusiveness but if you dont bin something that is indistinguishable then that is barely rational to support a judicial decision and i think the d. C. Circuit just used that analysis. So now as they have strict scrutiny is much less of a problem because of the commercial speech cases are often ocean how could you possibly have a compelling interest to accomplish this . I assume that will be sorted out but the at least theyre a little more candid it is not strict scrutiny as the courts might to apply that. But the d. C. Court is strictly limited to the contributions of Party Committees like in the case of banning contributions from Government Contractors was appalled but they took great pains to say we have no issue before us which i think were almost certainly have a different outcome because of the Legal Standard the circuit applied was watered down scrutiny. It was a risk to incur the wrath of the audience. Who has a question . Third year law student at university in chicago. I am curious about the license plate casein the implications of that purple yesterday a District Court held the trademark registration process was also governments speech and what kind of expansions things that we think should be content neutral have become government speech . As the trademark is stripped away because it is proved offensive to some people. What are your thoughts . There is a key distinction between government speech or editing. With a trademark contacts the public billboard context Public Transportation i thought the law was pretty clear before the recent decision that if the government is not speaking in editing and private places there is no realistic way to say that they were renting a public space for your own messages that Justice Alito made clear to their acting as the editor. There scissoring someone will have serious ramifications in another context i do think that law has ben a a whole over the place to begin with and use by those who dont like the notion people can complain about discrimination to and fro their principles and use the case to uphold those restrictions. There is a recent case that it the same thing out of new york. The tricky part that gets people upset is obviously of the viewpoint was republican but then to save the 04 democrats that isnt a problem. People are wrapped around the axle of you say dont do drugs with the viewpoint to ban that advocates the use of drugs. So people of gatt were about the implications from that perspective. With a trademark context at least the license plate is of actual government saying. [laughter] i think youll be awfully hard to transfer that over to the trademark context i yes to give Legal Protection but there really isnt a body for in the government anything. [applause] [inaudible conversations] we have a great panel today. , to introduce a the moderator, as a little fellow here at the Heritage Foundation she writes about cases and judicial nomination in the role of the court and also manages the Appellate Advocacy Program that includes to prepare litigators for oral arguments before the Supreme Court betray a graduate from eggs aviary university. We just heard from an impressive panel of lawyers argued big cases this term now we hear from three of the top reporters in the nation that is not an easy task to explain to the American People what the Supreme Court complex in a rather confusing opinions mean this requires profound knowledge of the core and its cases we are fortunate to have with us today our guests and take you for joining us. I will keep their introductions very brief and then we can get right into the conversation. Covering the Supreme Court for the lost regional as california weekly and has the Award Winning account of military trouble prior to joining the journal he worked for other publications including the Washington Post and Time Magazine and also works for hollywood talent agencies and held the 2015 senior royal lecture series at the university of new mexico. A graduate of harvard college. Next tavis Supreme Court correspondent for the New York Times that began in 2008 he also writes a column sidebar since 2007 he joined the New York Times after graduating from yale and returned to receive his law degree them practice elder the premier First Amendment law firms. Then he returned to the Legal Department to a rise on defamation in privacy and other issues he has taught media law at ucla and the yale. His work has appeared in the new yorker and vanity fair Rolling Stone and a number of leading law reviews. Markets cover the Supreme Court for the Associated Press in 2006 that has coincided with big changes with the marriage and health care and Campaign Financing and he has written about the Justice Department health care and National Politics and is based out of washington and atlanta. Then he worked for the atlanta constitution while attending princeton university. So picking up on the discussion of the First Amendment with a Confederate Flag case why you think the judgment was unanimous . What trend busey with this decision . We covered to some of this in the Previous Panel that i will see if i can add a couple of points to link the three cases together. You see that generality but freespeech is a stage of conservative valued and the other is the liberals on the court tended to vote as a block and when they can pick off one of the members on the conservative side did they achieve a victory. About the Confederate Flag it came after the charleston shootings. Would have put the court in an awkward position if it came out the other way. But it is a very blunt instrument to categorize 300 different license plates that say i would rather be golfing to advertise burger joints and it is the quality to move along there is nothing to see. But as a matter of First Amendment it is a little troubling. The heather to cases simultaneously expand the realm and then made scrutiny Something Else. It was unanimous the three of those liberal justices by justice cajun including the of the article that objective to what she perceived to be a very sweeping statement from Justice Thomas that all content regulation immediately trigger straight scrutiny she wishes of the view it is an easy case if you treat Church Science different than Political Science it does not pass the laugh test you have to read these pronouncements but this could be part of a up project that you see this in the citation it is all content based regulation against strict scrutiny and Justice Thomas doesnt from commercial speech for a the proposition was the pharmaceutical marketing case so we have very aggressively have expanded the realm but then you see it in action were under no conceivable rational system system, can this regulation is the opposite of narrowly tailored paillette who rates this opinion and the you have the cheese on death of chief justice saying this which is surprising with the fact they hero to a very vigorous dissent in the Campaign Regulation case. Those are some things with the First Amendment case. Following up on that, do you think there is a connection which will license plate case from several years ago today treat the Confederate Flag that they dont deserve protection . Cry of the Junior Member of this panel but it does seem to be with Justice Thomas to be out of peace from comments of cross burning from the bench to join those liberals from configuration. I was not here for the there casey there but i do think it would have been helpful if Justice Thomas had written a concurrence with some insight as to why he saw this different from other free speech cases yes taken positions on. Turning to the crime roulade dockage have they become more skeptical to give the lawenforcement leeway thats for the photo cast registries . With the crow robot doctorate, we see the same thing across the street at the capital which is a much broader skepticism of the tough on crime approach the states and Congress Took in the 19 eighties whose ramifications with the three strikes you are out are felt now. On capitol hill receive bipartisan efforts to reexamine those policies at the court, in particular when they have to judge which source of offenses trigger automatic deportation come with the courts more and more has been citing with the individual versus the government and prosecutors. They dont say in their opinion they go out of their way to raise the critique but theyre not exactly related but it falls into a general pattern of the my ill the resurrection and with somewhat greater standards after paying for very little but there was no mistake from what issue. The that the one book to justify a the stopgap was not fatal to the traffic stop. But it does seem that we are seeing that with the hotel registry case is interesting and has never, before to date back many decades it had an ordinance that a condition of having the innkeeper license remember those old is when you would write your horse to see if they had room for the night night, it requires maintaining a hotel registry in which every guest test to identify themselves to put in an information and most important they could be inspection and at any time for any or no reason. The police tended to use that was what they called parking meter hotels where they may be renting rooms by the hour for short periods in the South Central l. A. And said there using the power to reduce your crime or fight Human Trafficking that she people may want to use low end hotels the utmost care familyowned Small Businesses complain to the police were harassing them but they were not big places with the police showing up at 2 00 a. M. To wake up the owner with no suspicion was too much. The court agreed in order to have access the police need is something. Not a full search warrant but the administrative subpoena other than a whim that would allow the innkeeper to fight to the requested fee once to to get a neutral during. Item know if that is directly a look or of a critique of the general criminaljustice system but it reflects a renewed interest in the projections. That is the case where the Fourth Amendment case to take the dna sample from people they arrested that had not been convicted just arrested and the court said that was okay interestingly in that case Justice Breyer was in the majority and Justice Scalia was in the descent seemingly this less intrusive issue was Justice Briar in the majority. But they have not quite come not to critique over criminalization in the majority opinion but in the descent of yates is of destruction of the sarbanesoxley Justice Kagan said that is what the majority is upset about imf said because i know the guy can rewrite the statute but there is a sense on two different occasions to ask the question a 20 year sentence for what . The power to force a plea bargain from the innocent person is unacceptable. That is a remarkable turnaround for the chief justice because in 1993 after he left his job he wrote an oped for my newspaper to discuss the aggressive position of the First Bush Administration so to help states fight off criminal defendants who have these highpowered aclu attorneys and was concerned the Clinton Administration might not as aggressively support states trying to defend criminal convictions to keep the onslaught from overwhelming the federal justice system. Is opinion may have changed or maybe the world change but it did strike me those comments to go far beyond to express regarding criminal defense rights. A good term for religious liberty for opinions like hobby lobby. What do you think explains the nearly unanimous decision. Those were pretty easy cases for the court and much as a prisoner he was told he wanted to for religious but then had to wear a headscarf rand was not hired. And that case it was not clear that she was wearing her headscarf for religious reasons and never said that but the person to interview her had a pretty good idea she was wearing it for religious reaches reasons and was not hired because at the time the company had come to a policy no caps or head scarves in any type of head covering looked so very easily decided by the court if you look at the briefing with the exception of business scrips the briefing was onesided. There is in many cases produced were both sides are on the same side but that happened here. Those were cases in the arkansas case where 40 states allow prisoners to grow beards there has been no real instances of inmates dash being contravened the security interest was hard to see in the court was not really prepared to differ in that case in the abercrombie and fitch case it was the eight one decision that Justice Scalia wrote and he said if a Company Thinks are has a reasonable idea that they need a religious accommodation then you should give them the accommodation but there were a couple of justices who said maybe this will lead to awkward conversations up front but that is better than the situation that resulted. And his majority opinion and Justice Scalia talks about federal civilrights law. What impact might this have been the aftermath of samesex marriage case . That site to religious reasons not to be involved . Battle they say will be as easily decided that is the familiar split to make it much harder. I dont think that though less side of the court will willingly adapt to. Head of know if you have freedom of restoration act provisions i suppose the stuff about job discrimination helps a little bit but you have a significant defense all over the country. Actually there is a messy situation because despite the marriage proving federal law does not protect Sexual Orientation as a class with a state by state issue half have some form of antidiscrimination protection and half have a different type of law on the books providing cash is it is currently happening we will see the state courts to apply the statutes in these instances so we may see that play out considerably different unless congress decides to clarify or act of Sexual Orientation and protection because right now to be on the floor of the protection for samesex couples now i dont know what grounds it would be hard to rand that case. Taking the average person is surprised by this you can tell in much of the country a samesex couple could get married in the afternoon then fired a that evening for being gay. It is the sequence of events that the constitutional right to samesex marriage there is no job discrimination protection for gay people. They can get married to they have that right but employers could still fire them for being hippies. They are not a protected class. So unless there is a civic protection for people you dont like there is nothing there. One more point to. [laughter] some antidiscrimination laws to make marital status a protected class so now is that include the sex of the spouse . I wonder if those statice protections will now encompass samesex marriage specifically. If you give it vice to that to discriminate make sure it is on the basis of them being gave not samesex married couple. Exactly. [laughter] go care moving on from samesex marriage, it has been a rough year for conservatives you wrote the justices on the left could be disciplined to vote as one even the conservatives who did not agree although they voted together. What is the hope for conservatives . Limitation still feel pretty good at the next term pocket , there is some cases the conservative side is in pretty good shape. There is all kinds of ways to assess as political scientist had cases and by that standard they k mount it is also into the voting alignments but also with the theory is the especially liberal court people say it was a consequence of conservatives to make gravy at cases to the court to fall short i think there is something to that argument. As far as conservative as being divided there is more intellectual argument on the left side of the court it is highly concentrated ideologically and it isnt always clear the theory with the outcome in the particular case. I agree. The phenomenon of liberal unity and conservative diversity is something we have seen for many years on this court even when conservatives win they cannot agree why as he sought in the marriage case when they lose they cannot agree on why they lost for the we have four different the sense none of them agreed why they objected. Several years ago there was an opportunity to overrule the establishment clause standing case and there you had the five four decision but there were three opinions in the majority. But they came out in different directions. The same thing happened throughout the storm. It is true that we have seen since the 90s