Transcripts For CSPAN Key Capitol Hill Hearings 20150428

Was sworn in today by Vice President joe biden at the Justice Department. It is about 20 minutes. Ladies and gentlemen, please welcome Loretta Lynch and a Vice President of the United States joe biden. [applause] Vice President biden i first time i came into this room during the nixon administration. I remember walking into this building and thinking about the majesty of this place and how much we rely on it. For all of our basic rights and protections. Your whole family is here today. I hope you will forgive as we used to say in the senate a point of personal privilege. I am so happy to meet your dad. Dad, stand up. [applause] this is a man who never thought it paid to be silent in the face of oppression and prejudice. So many people, so many people not only in your home state of North Carolina and into the country owe you so much, not just for your wisdom but the courage it took back in those days to speak out as you did. A baptist minister who always taught his children that anything is possible. Think about that. A lot of his teller children that, but in the face of jim crow in North Carolina, raising a lovely, bright young woman as well as her brother and saying anything, anything is possible. The truth of the matter was, he not only taught it, he fought for it. As i understand, he made it clear they had to work for it as well. Dad taking Young Loretta to the courthouse to see important cases was in those days fairly innovative. Why does he have his young daughter with him in the courthouse . At the local library, he would drop her off where there was some security. She was surrounded by all those works, just an incredible love of learning and language. This is an incredible moment. A baptist minister who preached during the sitins in greensboro finds himself 50 years later with his daughter in this magnificent room, now leading the march to a more perfect union. This is something he fought or his whole life and still fights for. Its about time. Its about time this woman is being sworn in. [applause] its about time. Remember what she used to say . Im tired of being tired. We got tired of this wait. You showed such grace and humility during this process. This is a woman who is incredibly qualified, just like eric holder whom i have known for years. He is among one of the finest attorney generals we have had. He has been in this environment of such political hostility, he has stood his ground on principle and he has been right. [applause] the reason he was always so nice to me is he was on the committee to choose Vice President. He owed me for what he did. That is a joke, press. That is a joke. For the past six and a half years, eric sat next to me in cabinet meetings. There is a protocol where each seat is. You will sit on my left during those cabinet meetings. Eric sat there and i do know how many meetings we have had in the situation room. Issues after issue. So much more more. He served the department with distinction and our country with honor and i thank him and his wife and his family. He has a beautiful family of brilliant kids. [applause] i want to thank them for their service. I have confidence that Loretta Lynch will exceed the high standards. She is cut from the same cloth. They embody the mantra of their predecessor, the man after whom this building is named. He said the purpose of life is to contribute to making things better. Five generations, your brother is also a baptist minister. Your dad taught you to stand up for whats right and speak out for whats just and get up when you get knocked down and move on. If there is anything you need to know about Loretta Lynch, she excelled in everything she has done. She has never been limited by lower expectations of others. She has always exceeded the expectations set for herself or it she was at the top of her class in high school. She decided she wanted to go to harvard. She did well as an aspiring young lawyer. For 30 years she has been a fairminded independent lawyer and prosecutor. She has shown the resolve to jail terrorists, mobsters, and gang members. She rooted out public corruption. She summoned determination to bring down financial fraudsters and child abusers. She has shown a dogged pursuit to bust Human Trafficking rings that she has encountered. She is shown an unyielding commitment to the rule of law and basic human right. She forged striving for accountability in the crucible of genocide in rwanda. As a top federal prosecutor, she has worked with and learned from Law Enforcement officers and agents. You are going to have a great partner in this one, director. She has unimpeachable credibility to strengthen relations between Law Enforcement and communities. People often say that i trust those people who arrive at the right decision not through an intellectual examination of the argument but when it starts in the gut and goes to their heart and is articulated by a fine mind. That is who this woman is. That is how loretta gets it right. The president and i cant wait to start working with her. She will enhance the capacity to combat Cyber Attacks and cybercrime. She will prosecute those who prey on the most in need of our protection. She will continue to lead with her humble yet fierce determination to stand up for what is right, do what is just and not yield to anyone. I will close with this. I imagine being the daughter of an english teacher, Maya Angelous words have never been far away from her. Maya angelou once said, if someone shows you who they are believe them. If someone shows you who they are, believe them. Its profound. She has shown us her entire life who she is. Believe her. I believe her and the president believes her and all of the people in this department will believe her. You have shown who you are and everything youve done. Youve upheld the values of the oath you are about to take. We believe you. To the staff of the department of justice, you are the best of the best and with loretta, you have the best of the best as your leader. All the qualities she brings to the job of attorney general are because of what she has learned as a federal prosecutor. She is one of you. To the American People who are blessed with another remarkable Public Servant to lead this department. With that, i am now going to swear you in. The whole family, come on up here. You are going to stand here. I want to put your left hand on the bible and raise your right hand. Loretta lynch i will support and defend the constitution of the United States against all enemies foreign and domestic. I will bear true faith and allegiance to the same. I take this obligation freely without any mental reservations or purpose of evasion. I will well and faithfully discharge the duties of the office on which im about to enter. So help me god. Vice President Biden congratulations. [applause] Loretta Lynch here we are. I have to say as i look out on all of you gathered today, it seems like such an understatement to say my heart is full. It is full of the most deep and profound gratitude. I must thank so many people who made it possible for me to stand here. I have to thank the president for his faith in me and asking me to lead the department that i love to greater heights. Mr. Vice president , thank you for your comments today. Thank you for your support and your wise counsel through this process. I have to thank senator schumer and senator leahy. Thank you so much for being here. Thank you for your support not just today, but over the years and doing what i thought was impossible, making the senate a welcoming place for me and my family. Thank you so much. Thanks to my wonderful family. We are quite the force multiplier. Many of you have come to know my father throughout this process. He has been in every hearing and every vote. It did not just start now. I remember looking up and seeing him in the gallery at my first trial. He was there for every one. He has encouraged me in all things, even when my choices were not ones he would have made for me. He has been the best of fathers and i thank him. [applause] i hope you know that without him, i would not be standing here before you today having just been sworn in as the 83rd attorney general of the United States of america, just one week after his 83rd birthday. [applause] my mother could not be here today, but she is never far from my thoughts or my heart. She grew up in a world where she was told what she could not do. Or whom she could not be. She knew that she could soar. She did. She raised a daughter she told whatever the dream, to be a lawyer, a prosecutor, or the attorney general, of course, you can. I thank her as well. I have to thank my wonderful husband who has supported all of my choices and my dreams. I would not trade his love and support for all the riches in the world because to me, they are all the riches of the world. [applause] thanks to my colleagues and friends here in the department of justice, in the Eastern District of new york and beyond. Tremendous thanks go to people who could not be here today, the thousands of people, many of whom i never met personally, who expressed their support through this process. To the churches and schools who wrote letters and made calls to people on the street who stopped me and sometimes said just a word or two, please know that those words made all the difference to me as i traveled this road and i thank you. I thank you as i prepare to join the outstanding people of this department of justice. It has been the honor of my life and the privilege of my profession to have stood shoulder to shoulder with you twice before. You are the ones who make real the promise of justice and redress for all americans. I am honored beyond words to step into this larger role today as your attorney general as we continue the core work of our mission, the protection of the American People. All of us at the department are here because at some point we said, i want to be a lawyer. I want to be a Law Enforcement officer. I want to be a federal agent. I want to be someones hero. At the heart of that, whether attorney or agent, staff or principal, is the desire to leave the world a better place for us having been part of it. The challenge in that for all of us that love this department and the law is to use the law to that end. To not just represent the law and enforce the law, but to use it to make real the promise of america, the promise of fairness and equality and liberty and justice for all. I have been reminded that we are all just here for a time whether its in this building or on this earth. The values we hold dear will live on long after we have left the stage. Its our responsibility and our mission while we are here to breathe life into them and imbue them with the strength of our convictions and the weight of our efforts. I know this can be done. I am here to tell you that if a little girl from North Carolina who used to tell her grandfather in the field to lift her up on the back of his mule so she could see way up high, we can do anything. [applause] we can imbue our criminal Justice System with both strength and fairness for the protection of those victims and the rights of all. We can restore trust and faith in our laws and in those of us who enforce them. We can protect the most vulnerable among us from the scourge of modernday slavery so antithetical to the values forged in blood in this country. We can protect the growing cyber world and we can give those in our care protection from terrorism and the security of their Civil Liberties. We will do this as we have accomplished all things great and small. Working together and moving forward and using justice as our compass. I cannot wait to begin that journey with all of you. I thank you for being here today. Not just in this room, but in my life over the years. Thank you so much. I look forward to working with you as we make real the manifest promise of this, our department of justice. Thank you. [applause] coming up, Senate Judiciary Committee Chair Chuck Grassley talk to the National Press club about his committees agenda. That is followed by oral arguments in the two cases the Supreme Court will hear tomorrow on whether states can ban samesex marriage. If states must recognize lawful samesex marriages in other s tates. The first cases for michigan and the second is from ohio. On the next washington journal we look ahead to the Supreme Court oral arguments in cases examining whether states can ban samesex marriage and whether states are required to recognize lawful samesex marriages performed in other states. First, we hear from brian brown president of the National Organization for marriage and evan wolfson founder and president of freedom to marry. After that our guest is david savage, Supreme Court reporter for the Los Angeles Times and chicago tribune. He would discuss the cases and what the rulings could mean. Washington journal is live every morning at 7 a. M. Eastern on cspan. You can join the conversation with your calls and comments on facebook and twitter. This weekend, the cspan cities tour has partnered with Cox Communications they learn about topeka kansas. When the act was signed in 1854, the very act of signing it, of just signing that piece of when the act was signed, the act of signing the peace of paper was feared as was viewed as an act of war. When northerners decided as a measure, it was an act of war by many. There are raids back and forth across the kansas border. John brown, his sons, and other followers, dragged five men from the cabins and they were hacked to death with broad sores broad swords. If you looked outside, youd be hardpressed to tell who attended it. What is more interesting for most people coming to visit they found out that, after they attended and integrated the high schools, they were no supporters of segregation and saw it. The Africanamerican Community was also very proud of schools because they were excellent facilities. They supported the idea of integration. There was resistance from teachers and they feared the loss of the institutions and the loss of jobs. Watch it on look tv and sunday morning. Chuck grassley spoke about topics including the juvenile justice act. He answered questions. This is one hour. I am bob weiner of the newsmakers committee, and i will be moderating today plus his News Conference with senator Chuck Grassley of iowa, chair of the Judiciary Committee to discuss actions. It is open to club members and we want to thank cspan and other media for coming today. In addition to chairing the Judiciary Committee, senator grassley serves on finance budget, agriculture and joint tax. Cochair of the caucus and also a Founding Member of the Senate Whistleblower Caucus performed in this congress. Senator grassley has pressed for judicial nominations alternatives to teens in jail, courtroom cameras, antitrust drug control, Human Trafficking protections, and encouragement of american agriculture appeared a couple of major pieces of legislation he has authored that became law, a protection act in the Medicare Prescription Drug benefit. He holds a record for not missing a vote for any senator in the office. He lists his occupation as a foreigner. Farmer. He is known for his nononsense style and he strives for bipartisanship. He served in the house to 1980 when he was first elected to the senate and has served since. He will be running for another term. His press says his critics call him to conservative or too liberal. He is one of the few who does it just about right. I am proud to host senator grassley today. When i was chief of staff, senator grassley was a new house member on the committee. They first thing he did was to ask me to have breakfast with him a couple of times. He said, you are a liberal and i am conservative but we have a lot in common to her tort. He and the chairman worked together to abolish mandatory retirement for seniors. The major Senior Rights bill passed in the house and senate. Despite the opposition of the big labor unions and the roundtable, it was quite an accomplishment. Fast lowered 15 to 20 years when i was a spokesman for the white house drug policy office, i saw senator grassley, now in the senate, make methamphetamine and requirement it plummeted in america under his leadership at the senate Narcotics Office caucus. A campaign helped cause youth drug abuse to plunge 30 in three years. And the general sends a one hello to you and thank you for all you have done. We have all seen senator grassley exposed abuse in the government. It is nonpartisan oversight at its best. And it is going and going and going. A few years ago, we are at the capital challenge and he says youre running increases your lifespan at 10 years. He joked back that yard he got back. The staff, who did a great job in organizing todays event, told me he is still running. I want to say it is 10 years after the run that you keep extending your life. I also want to thank penny, who have known for years. I want to thank john hughes, the chairman of the National Press club. Come and say hello. The chairman of the newsmakers committee, joann, National Press club staffer. All of them healthy todays process. Our National Press club senior he will be taking the mike that will be used for questions by the audience. Lets see. Also, is eric here . If you can stand, they have had several months at an internship and have done a spectacular job. [applause] this tony here . No. Ok. My wife, if you would raise your hand, the George Washington University Medical center, from iowa. The senator is at the center of the action. Having sent to the floor the recent Human Trafficking law and the Loretta Lynch nomination for starters, we just learned Loretta Lynch is being confirmed today at 10 30 this morning. Sworn in. That is right. If time permits, he could discuss the rationale for the timing, also the collection, which the press recently reported you are at the center of. A swirl of activity at the club today on that. Maybe how that relates to Edward Snowden, a complicated ring. Executive actions he did generate. And you will solve all of this what to do about police after american killings, overall minority disparities, teens in jail, judicial confirmations immigration, and you get to do all of that in an hour. We wanted to hear about all your alternatives to teens in jail. We understand you had news on that. Senator grassley will speak for 20 or 30 minutes. I will moderate the questioning. Please identify yourself and your organization. Just a quick note, on may 7, we will bring in the director of aging on the National Institute of health who will talk about a fascinating sus subject whether human lifespan extended in our lifetime. And what doesnt look like in the future and what are the reasons for that . Senator grassley, it is an honor to have you today and the floor is yours. I do want to mention senator grassley is a little under the weather today. There was a possibility he may not be a will to come because of his cold, so we all really appreciate him being here on that basis. Senator grassley i seldom get sick so it is surprising to me as well. Thank you for the introduction. Good morning, everybody. Glad to be reminded youre from iowa. I became chairman of the Senate Judiciary committee in january. Pundits made a big deal about the fact im a first nonlawyer in the history of the senate to be chairman of that committee. I would like to think of the fact im a nonlawyer, that that is a way to inject a little bit of iowa common sense into the chairmanship. Most people do not realize the Judiciary Committee is the one committee i served on continuously since i have been collected into the senate. Many committees dive deep into a narrow set of issues that are important, of course, but not always on the forefront of the mind of all americans. The dish area committee, by contrast, hesters diction over a broad set of issues that are often fundamental to our national identity, issues sewn into the great and diverse fabric of american democracy. Many of the topics we debate invoke deeply held views. The committee oversees a judicial system that seeks justice for the injured and the accused. It upholds americass reputation as a welcoming matt to the world by ensuring our immigration system is inviting to Illegal Immigrants who share a love of freedom and respect for the rule of law. It fosters ingenuity and innovations that grow our economy by deciding the rights of intellectual property. He holds the key to the constitution, the document that is able blueprint for a thriving democracy and is a guardian over individual rights and our liberties. The founding charter of freedom helps guide america through our darkest hours, and paves the way to our most triumphant achievements. Arguably, quite like nothing else, our constitution promise of justice and equal rights under the law offers hope for the victims of injustice in our society. As chairman of the Judiciary Committee, i believe our panel bears a unique responsibility to uphold that promise for all americans, for americans struggling on the downside, for troubled youth who wonder if the struggle to climb americas is lateral ladder of opportunity and to stay on the right side of the law is even worth it hear it for the innocent victims who see the government as a big goliath, for the poor defendants wondering if they truly have a chance when they appear before the courts. I see my chairmanship as an opportunity to help secure americass blessings of freedom and liberty. The words we the people applies to all americans. I cannot think of a better platform to embrace and expand opportunities to victims of injustice fan on the Senate Judiciary committee. I plan to make the most use of the next two years of the 114th congress to make a difference in the lives of americans. Lets start with the youngest of those facing the criminal Justice System. The juvenile justice and delinquency prevention act was originally enacted in 1974. While it has been reauthorized several times since then, and has received funding, it has not really been revisited and updated since 2002. This is a program that not only helps prevent at risk youth from entering the criminal Justice System, but also, one of the miners already in that system. I am leading a reauthorization effort in a bipartisan way, the white house of rhode island. We introduced a bill last commerce to start a starting point. Last week, we held a hearing in the Judiciary Committee to focus on fixing issues within the juvenile Justice Grant Program that whistleblowers brought to my attention. Whistleblowers testified to widespread mismanagement and failures. They cited instances of fraud and neglect and core requirements for these taxpayerfunded programs. The Justice Departments negligence relates to an implementation of four criteria states must meet in order to receive funds. According to these whistleblowers, a few states meet all the Grant Eligibility criteria. But the office of justice program, which administers the program, turns its head the other way when states are not in compliance. Worse yet, states know about the blanket amnesty. Apparently, they did not even try to follow the law. After i wrote four letters on this issue, the Justice Department finally owned up to some of these problems. They admitted having a policy in place way back since 1997 that allowed states to obtain several funds in violation of the law. They assured me they will end the practice. Other issues remain. We are going to start writing these wrongs this week. The white house and i plan to introduce juvenile justice and legacy prevention act, reauthorization, and this week our bill will respond to issues highlighted by whistleblowers at last weeks hearing by increasing accountability and oversight in the office of administration of the law. The bill also seeks to improve the treatment of youth under the act, improving conditions for juveniles, and incorporating new science on adolescent development, we are also looking to update programs already established by the law and authorize funding for a fiveyear time. Another reform area has been in the press both nationally and in my state of iowa, through the writing of the register. Investigations by journalists and Civil Liberties advocates have exposed perverse incentives that have nudged enforcement of these laws way off kilter with basic fairness. These laws are important crimefighting tools that enable Law Enforcement to seize cash or property considered linked to illness the theory behind this is to choke off the funding stream used and that could be drugs Human Trafficking, money laundering, among other things. I agree it is a worthy an important Public Policy to help for the crime this way. It seems that sometimes, this tool is increasingly being used as a Funding Source for the government with thin regard of peopless civil rights. Im working to draft bipartisan reform to fix the flaws. For starters, the quid pro quo and funding should be limited to Law Enforcement agencies operation should not be funded based upon assets. In addition, real procedural reforms must be enacted for people whose assets are seized including prompt timelines for government action, and the ability to challenge promptly before a judge and individuals who cannot afford a lawyer, to guide them through the system should be provided one. Part of addressing the problem lies in reversing the recent decision in the Supreme Court that allows the government to prevent people from showing that they need access to their funds for the simple reason of defending themselves by hiring a lawyer. We also need to codify changes in the use of the program, and structuring cases were Small Business owners like one that got national attention, iowas carol, getting unfairly caught up in forfeiture for depositing money in the bank without indication of any underlying crime. A poor lady running a small respite that did everything cash wise, deposited the funds, and she was suspected of laundering money, because she was near 10,000. I am also looking at an area of law to help defendants not being provided with consult, as the constitutions sixth amendment requires. That amendment it calls for any defendant charged with miss demeanors, faces a positive jail sentence to have a lawyer appointed to represent them. The Supreme Court established this floor this rule for more than 40 years ago. We are learning states and localities regularly failed to comply with this requirement. As a result, potentially innocent individuals plead guilty to crimes. They also accrue a criminal record, which causes them adverse consequences, including difficulty finding a job, and cradle criminal history greater criminal history that would be considered in any future sentencing determination. Some misdemeanors are treated as felonies in the legal system if a person becomes a repeat misdemeanor offender. If some of those earlier misdemeanor convictions were uncounseled, somebody might be convicted of a felony who did not actually commit a felony. The committee will convene a hearing in the coming weeks to explore the problem and look at potential solutions. Along the same lines, let me explain another issue we are working to address. We are seeing studies that show 32 of American Adults have criminal records if arrest records are included in the figure. It means a lot of people are often put in unfair situations because those records are sent to the federal government for inclusion in a database and searched for background checks. If an employer uses a database for hiring purposes, the records could be inaccurate. The database includes arrest records that never resulted in a conviction. It is not fair that an arrest not resulting in a conviction is included in a criminal background check. While there is a process i which people can contest their records, being in the database there are flaws in the process that need to be looked and changed. Over the last several months ive been accused of being a roadblock to sentencing reform. Let me be very clear on this point. I have told my colleagues and also had a discussion directly with the president of the United States that i would like to sit down and talk about how we could move forward. I am ready to address some of those issues. What im not willing to do as an acrosstheboard cut in mandatory minimum spirit i agree some should be cut, but i also think some should be raised. Let me give you examples. With a heroine epidemic strangling some american communities, and whitecollar criminals getting paltry sentences, the last thing we need is to take away a tool that Law Enforcement and prosecutors used to get the bad guys. Let me end with this. When i first became chairman, i talk a lot about the dual roles at the legislative branch. Our Constitutional Responsibilities do not just include writing laws. We are also responsible for ensuring those laws are faithfully implemented and carried out by the executive branch. It is something i do not think we in congress do enough of anybody who knows my efforts understands why the Judiciary Committee has such a heavy focus on this vital function of the legislative ranch. I think i have a reputation as someone who does equal oversight of both republican and democrat administrations. I want to make it clear this is not about the current residents of 1600 pennsylvania. The previous of menstruation was not fond of my letters and oversight either. We need to keep the federal government working for the American People and not the other way around. After immersing myself in the legislative and oversight jurisdiction of the Senate Finance or Senate Judiciary committee for the last 34 years, i look forward to chant being championing these ideas or others and making eye the difference in the lives of americans are i am happy to take your questions now. Bob and you will make it big a big difference, senator. Thank you, especially for coming under the conditions of your voice and your cold or you did great. Cold. You did great. Why dont we tackle the elephant in the room. Then we can get into everything else. What is your feeling on the delay of the lynch confirmation until just today . Wasnt it sort of annoying to you that National Leadership decided they would play the politics of using one bill to force the other, and six months of a delay in the confirmation of attorney general . What is your thinking on that . General grassley senator grassley some of this will be a push back of the political party. I want you to know that as part of this. It was a long time, but lets subtract two months out of that time because this administration and the Democratic Congress in november and december could have decided to do that. I also admit that we republicans said it would all be held older, but they had a bigger agenda that they were glad to be held over because they wanted to get 13 judges approved and a couple of pieces of legislation out of committee while they were still in the majority. That is their choice, but i do not think republicans should be blamed for the first two months. They could have gotten the job done. There is no eu could have filibustered it. No way you could have filibustered it. Lets go over my role as Committee Chairman we would have the nomination up for consideration a second time because all of these nominations go back to the white house. They come back up. As senator leahy asked me, i said on january 20 seventh we had the hearing on january 27. I said we will be put on the agenda as soon as all of the written responses to our questions come back. I forget just which week that was, but then there was a week of congressional recess that came in between. I citizens we get to that recess, we would voted out of committee. So we did that. I kept my promise to the democrat leadership of the Judiciary Committee, that we were going to move her when i said we would move her. It gets out to the floor of the senate and at that particular point, it is not Chuck Grassley who decides when the agenda comes up. It is someone else. I except 0 i accept the majority leaders deciding when it comes up. I object to it. After the Human Trafficking bill came up, it got out of committee 190. Then the democrats decide to filibuster a bill that came out 19zero. As long as the filibuster when on, we could not get to the nomination. Why filibuster a bill that came out committee 190 come i do not know. But that is what held it up and that is all i can say. When it came up in the senate, other senators, not mine. Bob i will go in order of a few media here. Chris, asked a question if you would like. Chris thank you, senator. I want you to just comment on some of the issues that are happening in various minutes of colonies across the country. Baltimore, your general reaction to it and what you think needs to be done by congress or on the local level . General grassley i do not have a specific answer. I am not one of the people who would like to federalize everything. I would use it as an example of what is wrong with people in Law Enforcement. Most of them highly trained and im not the guy facing some person. I hate to secondguess what people i expect to protect me might be doing something right or wrong, but we are going to have some discussion at the staff level and see whether or not anything be done, and you could maybe ask me in a month or two and i would be glad to respond to your question more appropriately. It may be we will do not decide will not decide to do anything. Is there anything you might be looking at, at least in the early stages . Senator grassley whether to federal relies federalize, to give a presumption when a minority is killed by policeman, that that should institute a federal intervention. Bob an interesting answer. Why dont we go to bloomberg. Still here . Do you have a question . Can you talk about any plans to reintroduce the political intelligence will . You offered it as an amendment it was added in the senate and then taken out of the final bill. Where is that now . Senator grassley i still have conversations on that. I think she has introduced a bill in the house of representatives. I did not introduce the bill originally appeared it was an amendment to another bill. I do not think i have to introduce a bill to show my interest in it. I think the people involved in political intelligence got a lot smarter now. That dont me dont need legislation, but it is much more difficult to sort out what they are doing. It was very obvious when i got the amendment through the United States senate. You mean it is more complicated to try to come up with legislation . Not only that, but a lot of things he had done in congress particularly on oversight, when you have got a good working relationship between journalism and those of us in office, it really helps to get things done. It was highlighted quite a bit and was not difficult to sell that transparency ought to be involved here because transparency brings accountability. It is not quite as obvious now as it was then. Bob why dont we go to the washington times. Senator grassley we will get omaha. Do not worry. That is ok. Question is bouncing off what you said a couple of minutes ago, preliminary stages of deciding whether to federalize when a minority is killed by policeman, are you suggesting we should do away with internal investigations, that they cannot be trusted . That is what i hear a lot. Senator grassley my answer was, some of the things turn out there for consideration, i do not think i would do away with internal investigations, as long as there are roles for oversight for the Justice Department and most of these are in a role. Sometimes the Justice Department stepped in and sometimes they have not. You already have federal oversight of that. I degree. You i agree. Something else we also see if there is a friction now between the police and the department of justice, especially after, as eric holder made in ferguson. Ive heard about this as well. Can you speak to some of the friction now . Senator grassley i do not think it is a question of doing things differently. You do not throw gasoline on a fire. Bob the senator from omaha, you said . There we go. Senator grassley he just got engaged here. You mentioned possibly after you guys look at this at the staff level, and option might be doing nothing. How concerned are you about the level of anger out there on these incidences and the protests you would see. How that be seen if congress does not take action, and who is it up to then . Senator grassley you have asked me to do exactly what chris has to read i cannot be more specific than what i am. I just cannot be. I think it is something you have got to think about and not have hasty action. It doesnt mean we will have to take action. But i think common sense among Law Enforcement. But im not one to pile on police. When the decision has to remade and you are not there, but some of the stuff used Young Television is very nerveracking, and very difficult to say, even when you do not have murders, minorities, but you have got a policeman chasing somebody that probably did a misdemeanor, we have had these cases in iowa. Someones hands are up in an automobile accident. You have got to use common sense in your work as a policeman. Bob ok. Please identify your name and organization. E mentioned the active little while ago and another part of that was to reinstitute parts of the on a Services Fraud overturned and the house took that out at the last minute. Do you see that coming out anywhere Going Forward . Very close to you reading the indictment, a lot of attorneys are telling me it is very difficult for the Justice Department to bring some of these cases because the court narrowed fraud. Thoughts there . I spoke to it senator grassley i spoke to it in my remarks. Whitecollar crime is being soft pedals. Soft peddled. Intended to increase whitecollar crime. It is an area we are looking at to make sure there is more equity in the area. That is one of the areas i am suggesting maybe we needed increase in mandatory minimums. Yes. Classical. I was wondering, do you believe with the passage of the whistleblower protection act there is enough legislation now on the books to adequately address those issues, as long as implementation is done correctly, or do you believe additional legislation is needed . Senator grassley i would not rule out additional legislation. I go back to i think carrying out the spirit of the laws we arty have. It is like i told people in Judiciary Committee last week. I said a perfect example, we had two whistleblowers testify. Are they going to be punished for testifying . One of them is still in a position with nothing to do. I said to the assistant attorney general, this is exactly what is wrong. It reminded me of the grandfather of all whistleblowers. He is testify before congress and then in the nixon administration. Mix in nixon did not like it. He said, fire the s. O. B. Then when he got his job back, he was up in the attic of the pentagon. Last week, there was an example. The agency does not matter. His move from their own office to the closet, you know, the message out there is, there is a great deal of peer pressure going along. Do not make us look bad. All contrary to the principles involved in the whistleblower protection act. I asked every president of United States ought to have a rose garden ceremony honoring whistleblowers. From the top of government to the bottom, that whistleblowers is legitimate. If we did that, we would have 3000 whistleblowers come out of the woodwork. That is what you want. Assistant attorney general. You have got all of these. You cannot know what is going on. If you have got somebody telling you something is wrong, you ought to do something about it. If you do not, you come to us and then get punished in violation of the law, even in violation of a specific law that says you do not get punished for testifying before congress. We all work for the same taxpayer. So i do not think you need any more law. Some Court Decisions you may have to overwrite that is bad, but you have got to have people in the bureaucracy just do their job. The job is, if something is not right, change it. But was a lowers the government to do what is right and what the law requires and how the money should be spent. Bob let me jump back in because it begs discussion of another element in the room elephant in the room. Edward snowden considers himself a whistleblower and considers himself patriotic. He says he went through the process and knew he would be prosecuted, so he felt, he says, and those who write about him say, that he could not do it any other way. As a result of what he did congress and the courts and the white house have made significant changes, though the legislation is still pending in terms of accepting or rejecting. Many in the White House Press corps feel it is not the substance of the calls, but the listing of the people in the calls, your friends and sources, the problem in the book collections. There is that side of the election. Because Edward Snowden broke the law, is he a whistleblower, or is he someone who was actually simply an illegal criminal . It is a difficult question. I do not even know. Senator grassley right now, the latter. The legislation got to the house of representatives which would apply whistleblowing laws to National Security people because they are exempt now from whistleblower protection laws. He could have gone the whistleblower route. But when he did not have that, he violated the law. You can suffer the consequences when you violate the law. Bob ok. Hello. What are the prospects for getting legislation passed to address litigation abuse, and he see it going a twopronged attack dealing with the letters and the actual postfiling kinds of issues . Senator grassley it will be more comprehensive than just dealing with demand letters. It is getting close to a final agreement and maybe in two or three weeks, we will be introducing a bill. Maybe before that. It will be comprehensive, but it will not be like the house bill. It will have some of the house provisions in. But for example, there will not be a presumption, and probably less strict on pleading and discovery. The letters may be about the same in the case of demand letters. That is a little more controversial. But to be the most important thing is, you want to know who is suing you and you need to know how your patent is being violated, you see. Bob front row and we will swing back around. Your leadership introduced the patriot reauthorship last week. Questions on whether these straight no added safeguards could pass the senate. Would you put an alternative through your committee at this point . I know youre talking to intel leaders. I wonder if there have been any senator grassley i am still talking to members of the intelligence committee. For a long time, my staff and i were talking and senators were involved in those negotiations. I decided to not go along with what the house has put in. Maybe the house is going to drop that bill last week and they did not drop it. I would have to say it is pretty much in flux at this point. I am still seeing what we could do with a compromise between judiciary and intelligence. Bob either order. Click a twopart question on the same issue. Can you talk about the prospects for possible immigration bills that may be coming through, and part two, and youre prepared remarks, you talk about other issues besides immigration. Is it fair to say those issues would take a high priority . Senator grassley you know how it is in the United States senate. Getting bipartisan bills is pretty important. On all the other issues you are talking about, were trying to take off from where we left off last year, things that did not get done last year, moving along that line. Juvenile justice reforms is another example. I did not make it clear my opening remarks, but i did say almost from january that i was going to wait until i passed a bill to it was a matter of efficiency. Passed a bill or bills, i do not need to pass everyone of those bills. It would trigger us may be doing something. But we work for three months on that because years ago and in the house did not do anything. So i figured i want to use my time and the committees time where we could accomplish something. Rather than spending three or four months on immigration and have it die in the house. I think the house might act, but there is a feeling around town that the house may not do anything. Then you could understand i would spend a lot of time that could be spent, and probably the president did not sign that project. Going to the Voting Rights act, there was a thing last year, introduced, and again this year. Do you have any intention of bringing voter rights act fixed to the committee . Now that you have gotten control to both houses, what about cameras to the Supreme Court . Senator grassley it depends on what you want to fix if you want to fix. If you want to fix more minorities voting, more are already voting. The Supreme Court throughout the section of the Voting Rights act, if there is some other reason for being involved in doing something for the Voting Rights act, i will take a look at it but it seems to me it has got to be different than the original of the Voting Rights act. In the last 50 years, it has made great progress. What about Supreme Court cameras in the courtroom . Senator grassley i am sorry. I guess i did not hear that. Lets hope the bill will get passed. Im a Firm Believer in it. Our two justices said they would rather, over their dead body. It happens i do not want those two Supreme Court justices to die, but i believe that we could and hands peoples understanding of the court system by having the Supreme Court, very much and so on. It divides both republican and democrats. A Bipartisan Group to get it pass in a Bipartisan Group against it here not quite as easily printable. Senator grassley, i thank you for being here. I had lobbied congress. My name is jane. Im a freelance journalist. We were working for the federal legislation on whistleblowers. One of the issues that came up and i bought you with your recent investigation. Private universities are recipients of a huge amount of federal tax dollars. And yet, grant recipients who blow the whistle are not protected. I myself amongst another group of scientists, i lobby congressmen. We were disenfranchised, lost. Rear and jobs. At least 400,000 were put into training. Because i stood up for waste fraud, and abuse, and fabrications come falsification of data and all of that, we lose our careers and there is nowhere to go in the private sector. Can you tell us if there is any hope for translating whistleblower protection at the private University Level where federal tax dollars are involved . Senator grassley we have done a lot of times with the private sector, whether it is nonprofit or forprofit him it would not make much difference. We have legislation. It is not general legislation. If we had that, you would be affected. A lot of times, we get legislation passed, wall street reform, where risk whistleblowers get protection. I would be willing to look at that. Bob other questions, hands raised . Great. Clients hello. I am with the union of concerned scientists. I have another whistleblower question. Which is, the military whistleblower system is not as strong as it should be. There are some efforts to strengthen that. Public Health Employees including scientists. I wondered if you considered supporting efforts this year to strengthen the military whistleblower protection act . Senator grassley i will be glad to look at it. I wonder if you could be any more specific than a member of the military has a right under law already, to talk about congressman, if they want to . Can you do better than that . Obviously, the senator probably has got a way to do it but i cannot speak to her specifically. But again, you get back to something, are you going to look or something by passing the law . Getting these laws the way they were intended to be carried out. Bob ok. Other questions . Answer raised. A quick one. I was just wondering. President obama renominated to be head of the federal regulations authority. I was wondering, i believe your committee looks at that. Is there any schedule, she has been authority for a number of years. Is her confirmation on schedule . Senator grassley we will have a hearing next week but i do not know whether she is on that. We usually have four or five at one time. I do not know if she is on that list were not. I want you to know we take them up the way they come up to us. Particularly, it is true of judges, as an example. The priorities are what we received from the white house. You getting from the democrats what is your plan this year and how fast you are getting them to the floor . This year, there is no change. But i suppose, come july of 2016, there will probably be cut off after july, because you would allow those judges to be filled by a new president. Were you asking judicial nominations . Yes, they said you only have done two this years. This year. But in terms of open to that point, how many do you expect a week, or how will you handle it . Senator grassley we will handle them on the same basis we have. One thing you want to remember and this gets back to the question he asked me number one. The answer i gave there, they decided they did get them approved. Those went back to the white house and carried over. They would have been approved by now. They changed the rules after election generally, judges do not get approved at that point. They go over to the new congress. I kind of resent the fact they are saying we do not pull out the number of judges they did. If you look overall just over 300 judges have been approved by republicans under this president. Only two have disapproved. Youre in a situation compared to what bush had approved at this time, 270 something, as an example. I think the numbers we could talk about are very positive. Bob in the back again. I had a followup question. Going back one more time to you are in the process of thinking about how to deal with minorities being killed by policeman, there are a lot of minorities killed by policeman and i lived in baltimore. 20 of officers. I wonder if doj might struggle with that kind of a largescale undertaking . Senator grassley what was the question . Bob would doj struggle with the undertaking of a large number of killings, is that your question . Right. Senator grassley youre talking about six or seven different states in the last months. The Justice Department has the Legal Authority to do it and they have the responsibility to do it if they feel the federal law has violated and they could investigate. They already decided to get their son was drowned. He was not properly tied in to his life jacket and he drowned. They would like to have a federal investigation. Economic decision for the attorney general. I will do the investigation if it needs to be done. One or two more questions. Go ahead. I wanted to followup on sentencing reform. The u. S. Leads the country and people in prison and a lot of people are in there for nonviolent offenses. He said he wanted to dr. The white house. Do you think this bigger issue of sentencing reform will be moving at all this year . I told a lot of people that are for sentencing reform that i want to sit down and talk with them. There is some talk going on. But im willing to do some legislation in that area all stop area. As far as anonymous companies, the u. K. Has passed a law for that end. What is the law . I dont have the specifics but it would create a registry of Beneficial Owners for corporations in the u. K. I think i dont know whether the issues are the same for the u. S. But i think it is perfectly legitimate that you know who was running a company. Transparency brings accountability. Senator, thank you so much for a wonderful presentation. It was a lot of fun. I think we covered every issue on that list and we did it in an hour. Thank you very much. We are adjourned. Coming up, a review of the Supreme Court. In michigan case challenging the states ban on samesex marriage. Then, the ohio case. That is followed by a discussion with legal scholars from the American Constitution Society on samesex marriage. Remarkable partnerships iconic women, their stories in first ladies, the book. She did say the portrait of washington, one of the things that endeared her to the nation. Whoever can find out what francis was staying, what she was doing, that was going to help sell papers. She takes over a Radio Station and starts running at. How do you do that . She exhibit and normas influence because she would move a mountain to make sure her has and was protected. Published by public affairs. Look inside the personal life of every first lady in American History when about their lives ambitions, unique partnerships. Fascinating woman who survived the scrutiny of the white house. Now available as a hardcover or an ebook through your favorite bookstore. Highstakes as the Supreme Court considers the samesex marriage case and oral arguments getting underway tomorrow morning. Robert barnes will be inside the courtroom. Thanks for being with us. What is this case all about . There to questions the court is looking a. One is whether the constitution requires that states allow samesex couples to marry and the second question is whether states are required to recognize samesex marriages that have been performed in other states where it is legal. The Court Decides states must issue was in 60 samesex couples. If you look at the arc of this issue and the sentiment about Public Opinion going back to last five or six years, i cannot recall an issue that has change in the publics mind this quickly like this one. Pollsters say it is something they have never seen either. The change in Public Opinion has been huge and driven by a generational. Young people very much support samesex marriage. They really dont see an issue and it is interesting that this is one when you look at young people, there is not a partisan divide on while young people who are democrats favor it more. The republican young people favor samesex marriage as well. What will be court aside and what does this mean for those states that dont allow samesex marriage . The constitution protects their rights, meaning it would not as this case has gone through the court system, many more judges have said there is a right for samesex marriage. They do. They were born in the same year, chosen by the same president , ronald reagan. They live on the same Northern Virginia street and they served together in the Supreme Court. It has been an interesting pattern as these gay rights cases up come through the court. There have been three major decisions favoring gay rights. Each one of those, Justice Kennedy wrote the majority opinion. The justice wrote a fiery dissent and it really crystallizes the way the two of them look. Theres a question about what you do about constitutional protections in a changing society. Justice kennedy would say that the constitution expands and can recognize rights that we couldnt see before. And the other justice says no it protects the constitution. We want to expand those rights, dr. The democratic process. It is a real difference between the way they see the constitution. The oral arguments will be 2. 5 hours. Give us a sense of somebody must follow the court so closely what you will be looking for. Obviously the key to these cases as Justice Kennedy. I think that we feel pretty sure about which way the liberal justices will go. Conservatives have made that clear two years ago when the court ruled the federal government must recognize samesex marriages. We saw that and we saw Justice Kennedy cast the deciding vote. Ms. Case in one way seems like a logical extension of what Justice Kennedy has done on gay rights but i think the obstacle for those samesex marriage supporters is that he also a big believer in states rights and federalism. This is one of those cases that requires a balancing and i think everyone will be listening to the questions that Justice Kennedy asks Justice Kennedy was not Ronald Reagans first or second choice, but his third and his role in the court has continued to find so many cases over the last 30 years. It would have been a huge difference if he had been confirmed. That would have really change the Supreme Court in a major way. Robert barnes reporting online. Thank you for being with us. My pleasure. The sixth Circuit Court of appeals upheld marriage bans in michigan, ohio, and tennessee. It was the first major loss after several victories across the country, creating a split in the nations court, thereby setting up a review by the Supreme Court. This case involves the samesex couple who initially challenged michigans ban against allowing samesex couples to adopt children. The couple amended their suit to challenge the samesex marriage ban. This argument is an hour. Mr. Lindstrom may it please the court as Justice Kennedy explained a few months ago, it is a fundamental premise of our democratic system that the people can be trusted to decide even divisive issues on decent and rational grounds. Thats what this case is about. Its about to who gets to decide what the definition of marriage is, not what that definition must be, and its about who gets to decide on two different levels, the judicial hierarchy has felt whether a District Court can disregard a directly on Point Holding by the United States Supreme Court, namely baker versus nelson and the bigger picture, its whether federal rights, if there is a creation of a new federal constitutional right, if that should be done under the amendment process or by the courts under a doctrine. There is Common Ground in this state that the u. S. Constitution does not directly address samesex marriage, which means to turn to the question substantive due process. The right being asserted is objectively, deeply rooted in this nations history and tradition and puts it in the concept of the words liberty such that you can conceive of liberty and Justice Without it. Samesex marriage doesnt have the deep root. What do you do about the fact that one could have said the same thing about lawrence . Mr. Lindstrom well, with respect to lawrence, the Lawrence Court didnt directly address that analysis. This court has repeatedly applied the analysis and recognizes the continuing way that youre supposed to analyze substantive due process both in the u. S. Citizen Association Case and lawrence, this court has continued to apply glovesburg, has recognized as that as the relevant standard. Lawrence doesnt override or reverse all of the cases before it simply by not mentioning it. So this court is still bound about it and by this courts precedence applying glovesburg postlawrence. Judge sutton what about baker you mentioned that early on. Not a very long opinion, i think you would acknowledge, a lot has happened since then, i think you also knowledge that, so how do we deal with it . Mr. Lindstrom well, this court is bound by the length of it doesnt matter because the question is a question of hierarchy, and i would say that the Supreme Court has repeatedly said that summary decisions that it makes are binding on the lower courts. It merits determinations and this court has reiterated that. For example, a case specifically said that summary dispositions are still binding unless reversed by the United States Supreme Court. So i think that judge daughtrey its a little more give and take in it than that. The Doctrinal Developments doctrine that has grown out of other Supreme Court cases, were clearly dealing with Doctrinal Developments in this area of the law, are we not . Mr. Lindstrom well, there are two answers to that. First of all, the Doctrinal Developments language in hicks is that hicks also said that courts are supposed to follow the Supreme Courts decisions until it overrules that and subsequent to that, in rodriguez and the cases this court has also made this point, its a decision that the Supreme Court rest on a line of cases that have been overruled. So if the Supreme Courts override it, but i disagree on the Doctrinal Developments point, too. Roemer doesnt do anything to undermine the fundamental rights aspect of baker versus nelson. Both questions were presented in baker versus nelson whether there was a due process right and also judge daughtrey you dont think lawrence overruling a case that came out just a few years before that indicates a Doctrinal Development . Mr. Lindstrom i think that shows a Doctrinal Development in the area of right to privacy. But i dont know that that necessarily shows Doctrinal Development in the fundamental right to marry which is public recognition to something, not a right to privacy. Lawrence has decided on a different substantive due process ground, and doesnt have anything to say about the fundamental right to marry. Judge daughtrey what about the loving case that suggests, that the policy and the laws against miscegenation were not deeply rooted in our American Society and yet that went by the by . Mr. Lindstrom the case is primarily about the fact that there was Racial Discrimination, violation of the protection clause which the Supreme Court recognized that the Primary Court component of the 14th amendment is to end Racial Discrimination. The fact is that Racial Discrimination judge daughtrey was it not the law across huge swaths of Southern States at the time, i mean that was a vote by the people of many states against the possibility of interracial marriage. And the language in loving says the right to choose whom to marry is a fundamental right. Mr. Lindstrom to the extent that there is an attempt to analogies the question of samesex marriage, the Supreme Court rejected that express analogy in the baker case. So it just doesnt matter what the Supreme Court has previously done judge daughtrey so, what you want us to do is take an 11word opinion and knock out all of the arguments for samesex marriage in the last 10, 11 years . Mr. Lindstrom there have been other courts that have recognized being bound by baker. But with respect to the loving analogy, the Supreme Court, if the Supreme Court wanted to say that the freedom to choose who to marry wasnt limited to someone of the opposite sex and they had the opportunity to do that, they didnt do that, that question was directly presented to that. So that shows there was a different between race which does not go to the heart of what marriage is. Judge daughtrey but you would have to concede that there were in terms of what the electorate wanted, the loving decision went against what the electorate wanted in much of the south when it was announced . Mr. Lindstrom i think it did not. When you talk about the electorate wanted, the electorate passed the 14th amendment to end Racial Discrimination. The electorate that wanted to end judge daughtrey you might be understood in knowing that as recently as 1978 the tennessee constitution provided, the intermarriage of white persons with negros, mulattos or persons of mixed blood descended by a negro to the Third Generation inclusive or living together as man or wife in this state is prohibited. The legislature shall support this section by appropriate legislation. In march of 1978, the tennessee electorate was asked to repeal that provision in the constitution and they did so but they did so by a margin of only 8,000 votes out of almost half a million. Mr. Lindstrom i think the points show that the people did choose to try to end Racial Discrimination with the 14th amendment and did also later choose to end Racial Discrimination. That just showed that the people can make decent and rational decisions. It doesnt mean that history and tradition of this court with respect to an issue here which is samesex marriage, having to look at windsor, its very instructive, the historical analysis. Section 3 of windsor talks about the history and tradition of marriage and certainly talks about the history and tradition of samesex marriage and with respect to samesex marriage, it recognizes that it was only until recent years when that was even possible. Judge daughtrey thats true thats true. If we take this case to be about the right to marry and not the right to marry a person of the samesex, isnt what is going to happen around the country pretty clear . And what is happening pretty clear . Mr. Lindstrom if what youre saying is people are passing laws to change the law . Judge daughtrey thats not what im saying. What is the issue, the issue to right to marry, dealing with the right to marry or dealing with something like, oh, what were those cases, the right of inmates to marry, the right of deadbeat dads to marry . I think it was judas kay that said fundamental rights are fundamental rights, simple as that. Mr. Lindstrom for example, if youre looking at whether there is deep historical roots within the definition of marriage that only people not behind on their Child Support payments can marry is different than only people from the opposite sex can marry. For substantive due process, they had limitations that were not deeply rooted throughout the tradition of what marriage had been. Again, the Supreme Court is talking about history and tradition of the windsor opinion. The marriage between a man and a woman for centuries has been recognized as fundamental. The Supreme Court was talking about the fact that the marriage is defined as being between a man in a woman as fundamental to the very definition of the term. That was true to the definition of the term and function throughout the history of civilization. Judge cook judge sutton what do we do about the reality that the marriage is always about, it changes with social mores and maybe originally marriage was encouraging pro creation, channeling procreative possibilities. It seems harder to justify on basis grounds. Everything youre talking about is not being a fundamental right, that doesnt answer the question that really was the holding in all four of these cases, that it doesnt even survive rational basis review. What do you do about the difficulty of if you think about marriage just through that lens, love, affection, commitment, it does start to get a little difficult to see the difference between the one Group Eligible and the other group not . Mr. Lindstrom i agree, when you focus on fundamental rights, history is the focus. The protection, a rational basis and so the question is, i guess, the preliminary starting question for the rational basis inquiry, why is the state interested in marriage in the first place . Why is the state interested in emotional connections between people . We discussed this in our brief. It doesnt have interest in regulating friendships, it doesnt regulate how many people can be in a friendship or how long a friendship has to exist. The thing that changes, and the reason the state has interest in marriage, marriage leads to children and the bringing of new children in society and how is society going to make sure that theyre cared for. So its rational for the states to have an interest in promoting marriage so it will be more likely that a child will have both a mother and a father and have the benefits of having both a mother and father. Remember, in the trial below the experts on the plaintiffs side conceded there are differences between mothering and fathering, there are different benefits for each one. Judge daughtrey what is the rational basis for excluding everybody else . I mean, it doesnt cut down on the procreation of children, interfere with the pro creation of children just because you got two people of the samesex marrying and in some of those marriages, at least one of them, one of the partners is able to procreate. Mr. Lindstrom first i have to point out that the rational basis with a different view, that is flipping the question. The robison case lays this out very clearly by the United States Supreme Court where it points out that the question for rational basis for view is whether the state interest that is being put forward, if its being advanced by including a first group and by including a second group that does not advance that interest is not irrational, it does not extend benefits. That case again was about veterans benefits. The question the state interest asserted was having people fight in the Armed Services and the benefits were extended to them the benefits encouraged people to join the military. The question was do Conscientious Objectors, are they entitled to these benefits, and extending benefits for college and just objectors would not advance the states interest in making it more like being able to fight in the Nations Services judge daughtrey you would say that what were trying to do in the confining marriage to opposite sex partners is to encourage procreation . Mr. Lindstrom i think that is one of the states interests is making sure that procreation for one occurs in longterm committed relationships with opposite sex couples where pro creations. Judge daughtrey isnt that a little hypocritical then to have, allow people to marry who cant procreate but prevent samesex partners from marrying . Mr. Lindstrom not at all, your honor, state for a samesex couple applying their marriage license, are they going to procreate, the definition of marriage is always going to recognize that opposite sex couples have the right to marry. That would be a limitation on the fundamental right to marry. You wouldnt get to that question. Judge cook you would acknowledge that there are benefits, important benefits to the state beyond procreation, i would think, the benefits and responsibilities attendant to marriage seem to bear on the question were suggesting here is whether or not those matter to a state that says as virginia did, we have no interest in licensing adult love. There are these benefits and responsibilities that would be important to the state, taxes, somewhat consistency among the members of the married members, folks in marriages throughout the state all would have the same responsibilities those sort of things . Mr. Lindstrom i think there would be other benefits from people judge cook procreation. Mr. Lindstrom staying together. There may be multiple state interests, but the question here is whether its a rational state interest to make it more likely that every child have both a mother and a father or whether its at least a rational state interest to try to recognize that as a biological reality opposite sex couples can have unplanned pregnancies where as samesex couples cant. So extending marriage to opposite sex couples addresses that concern, to samesex couples doesnt. Its a rational basis which is all that is necessary. There are other benefits for marriage, but the fact that that doesnt undermine its rational it is rational for the state to be promoting these marriages . Judge cook as everyone acknowledges, recent cases have not applied here rational basis review . We know that windsor, for example, placed the focus on difference in rational basis review. Mr. Lindstrom well, Windsor Roemer and then windsor. Roemer talks about conventional inquiry and talked about whether there is a desire to harm so windsor does the same thing, roemer requiring a desire to harm in order to set aside the rational basis. If there were a desire to harm, you may not be able to tell that if there was no rational basis. There is a rational basis. There is no reason to fall back on the desire to harm. Instead the presumption is what i started out with. The voters are decent and rational. If there is a plausible i mean thats what the rational basis test is. There is a conceivable basis then thats reason to uphold the law and this is a democracy promoting rule. It allows the people to make these decisions. Remember, this is something that the people can decide to change tomorrow by amending the federal constitution. Its not that the court is the only recourse for creating a new right. In fact, the court shouldnt be creating new rights. The third rational basis i havent brought up yet is the fact that there is uncertainty in this area. Its simply such a new thing, its too early to tell. The plaintiffs experts conceded that trying to study children raised in a samesex household is a needle in a haystack population. They also conceded excuse me, the expert says there hasnt been a single comprehensive study of children that were actually raised in samesex marriage. So a rational person might think even somebody who would vote in the future for samesex markings samesex marriage, a rational person might think its too early to tell. Its rational to wait and see. So there is a number of different rational bases. Judge sutton you were starting with fundamental rights and talking about rational basis review. If you get to strict scrutiny or intermediate scrutiny through one path or the other, would you concede the state has a problem . Mr. Lindstrom no, your honor, it would depend on which framework. If it were intermediate scrutiny, setting aside the fact that the court has three president s, even if those werent there, under immediate scrutiny, biological differences between men and women can make a difference. For example in the wynn versus ins case, which is about the difference between mothers and fathers who had children who were born outside the United States, the United States Supreme Court upheld they treat men and women difficulty and required men to prove to a higher degree they were the father than a woman when they brought the child back in the u. S. Its possible to survive under intermediate scrutiny. The other part, under the equal protection clause, the law stayed neutral and the law has no intent to harm. The District Court in michigans case specifically recognized it wasnt possible to say that there was an intent or an animus on the part of michigan voters. So that means the only thing that is left is the impact and under washington versus davis judge sutton how did they stay neutral . Mr. Lindstrom neutral judge sutton marriage is including one group but not another . Mr. Lindstrom by defining marriage to be between a man and a woman judge sutton basically neutral as genderwise, i understand that. I agree with that. But i understand why its neutral as between people of one Sexual Orientation and another. Mr. Lindstrom i think the answer would be that it doesnt prohibit them from marrying either. So neutral, there was no evidence that this was done to exclude them. The evidence that it was simply continuing the definition throughout michigans history. Judge daughtrey you mentioned the sixth circuits president s. I assume youre talking about davis . Mr. Lindstrom as a friend of davis, yes, your honor. Judge daughtrey you know the problem with the Quality Foundation as i read it, it depended on, it relied upon the Supreme Courts decision which was reversed in lawrence. So i wonder mr. Lindstrom your honor, the eQuality Foundation opinion mentions bowers only when talking about prior history and its based on roemer. It was remanded in light of roemer and now its under roemer. So, it does not rely on bours. It doesnt talk about bours and again, this court, even after lawrence has continued to apply the same judge daughtrey i have to tell you that we are sometimes perfectly capable blindly, i am not sure that i would be willing to say that we didnt in davis. But, that has happened. Judge of sutton which makes life very difficult for justifying the law. What are the practical implementation problems . With brown, you could say that the only implement implementation process. It is a pretty easy rule to implement. This may be controversial, there may be resistance, that why is it difficult, as a matter of implementation to implement this new role . This new rule . Mr. Lindstrom what it be harder for the state to implement . I guess, i think that if you are talking about what harms might come from changing judge sutton is it difficult to adjust state laws on marriage, divorce, or is it really very simple . Do you now include this new group i am not sure exactly how it would all play out. Mr. Lindstrom judge cook what would they be . Mr. Lindstrom in the big picture, one of the things that could happen if there was a change, and this would be something if there are were no institution in michigan, it is important to say that both mother and father. In terms of societal impact, there would be harms come because there is nothing to say that mothers and fathers judge cook do you honestly think this is happening in the states were samesex marriage is allowed . Mr. Lindstrom it is too early to tell, your honor. Judge cook we are now beyond 25 of the jurisdictions in the country. And probably, more than that in terms of population. As a whole. And, it doesnt look like the sky has fallen in. Mr. Lindstrom the point is, that it is too early to tell. When you are changing fundamental, bedrock of society i dont see how it is possible to assess the outcome on children. Judge cook i thought there was a lot of evidence offered in the trial in michigan. That indicated that the outcome on children was reasonably benign given what they know at this point. I know what you are going to say. It is too early to tell. [laughter] mr. Lindstrom i am going to say that. I think that is valid your honor. Judge cook the people that try to come in on your side of the trial, and present all of these terrible impacts that they say this would have. Even the texas professor, when they have the disclaimer on the website, saying do not believe anything this man says. Mr. Lindstrom your honor, the fact that one social scientist the big picture is that it is too early to tell. I think that rational people could agree with this. Rational people could recognize that it is too early for social scientist or philosophers to be able to tell. Judge cook is your point the votes of citizens of michigan mr. Lindstrom i think that ways into the consideration very heavily. For example, this is under rational basis review that michigan voters it is not possible judge sutton if we talked to the people in ohio, the red light is on. Judge cook the dates of the last time that the people in michigan voted on something was in 2004. Mr. Lindstrom people can change their mind. It is not unconstitutional. Carol stand yournyar our liberties protected by due process. They have a constitutional right to share a life to mary to start a family and to raise their children we show in this case that no matter what standard of scrutiny the court uses, no matter what doctor and the court applies, the state cannot prevail here. The michigan marriage amendment is unconstitutional. A starting disagreement between the parties as a cart as the court has already observed, is it the right to marry judge sutton baker is binding. Windsor there are no majorities recognizing that. I have to say that i find that a serious issue. The thing that is going on, we treat these summary reversals as binding. There is language regarding development that is mainly from a 1975 case, ex. It is not clear what hex hicks means. But then, american express, the court is pretty clear about saying, even when you see one line of cases, the lower courts are not allowed to infer anticipatory early and overruled the cases. As a matter of hierarchy, are we stuck with baker . Carol stanyar we believe that roemer, windsor, morris constitute that Doctrinal Development. The agostini case judge sutton reasoning that is inconsistent with other lines of president. It isnt that what you mean . Carol stanyar there is evolution of this concept. Judge of sutton that is increasingly inconsistent with baker. That is your point. Carol stanyar agostini is distinguishable. Agostini was a full opinion that had written opinion, it had oral argument. That is what is distinguishable distinguishable about these kinds of ruling. Judge sutton that is why the Supreme Court is casual about ignoring them. I did not think that rule apply to the lower courts. Carol stanyar the Second Circuit and league of women voters explained that lower courts can be informed directly by an outright reversal of an earlier decision or they can be informed indirectly by Doctrinal Developments. What we would say is that the Doctrinal Developments are the way that this court is informed and therefore this court can make the call despite baker and every court in the country has ruled this way a baker. Judge sutton not on the first and Second Circuit on windsor. Carol stanyar probably the most Doctrinal Development that we have because of the recognition of the samesex marriage case. Judge Sutton Lawrence was also a Doctrinal Development. I think you rely on those cases. That didnt alter their view on how to look at this. The Second Circuits view before windsor. Some of those cases were windsor themselves. Carol stanyar i understand that. Let me do it this way, the Supreme Court had that issue before it. There was a discussion on the record with Justice Ginsburg talking about Doctrinal Development. They decided that case based upon standing. The court doesnt think much about that. They didnt even mention baker. The Court Allowed californias ban to be struck down. Judge sutton it would have been pretty strange for windsor to say anything about baker given that the companion case to windsor was hollingsworth. They decided that there was a jurisdictional impediment. Carol stanyar i understand what the court is saying. In this case, this court can reach it because there has been Doctrinal Development. I guess i dont have anything to add to that. We are not asking to redefine the marital relationship. We are asking to an end of samesex couples having the right to marry. Not on the fact judge cook when you are talking about getting that right. It is that it requires state licensing. That is what your talking about. A state license. To license their relationship. Carol stanyar that is correct. Judge cook the import there is Something Different than what i thought you were talking about. You want them to recognize it and to license it for the state to license it. Carol stanyar we do. The central attribute to marriage is to marry the person of your own choice. The court must make a careful description of the fundamental right. There is a long history of decisions defining that right at a broader level of generality. Judge sutton take a loving point. That was a 1967 decision, so in 1960, if a gay caucasian man and a gate africanamerican man seek a license to mary in virginia. Do you think that loving control that case of 1968 . Carol stanyar i think the court, by citing loving, in windsor doesnt think theres much difference between marriage of a samesex couple versus marriage of a biracial couple. The trent is certainly in that direction. The trend is in that direction. Caps on judge sutton we had baker in 1973. Carol stanyar Justice Kennedy tells us something about how the court may be viewing these cases. What he is saying, and you see it in lawrence and in windsor, the court is saying that decades ago, certain practices were accepted. And now, we understand more about these things, and we understand that these are now going to be framed as discriminatory. We didnt know anything about samesex couples then. They were hiding. They were hiding because their conduct was criminalized. To say that that the argument that the argument would have held water back in 1967, that was a big that was a different time. Judge sutton there are different benefits, some of them monetary. That is significant. I have to believe, based on the briefs, but the most important thing is respect and dignity and having the state recognized these marriages, the same way that heterosexual marriages are recognized. In respect to dignity, those are that is a key element here. I would have thought the best way to get respect and dignity is through the democratic process. To recognize that these marriages, or the status deserves the same respect as the status of a heterosexual couple. It is funny to me why the democratic process, which seems to be going pretty well, nothing happens as quickly as we might like, but i am curious how to how you react to that point . Carol stanyar the michigan marriage amendment that it the process. Gutted the process. It evaporates if there is antipathy. There are plenty of reasons for antipathy here. We have historical discrimination judge sutton what what would michigan voters do it this boat was put before them . Carol stanyar to get this before them, you would have to come up with signatures of 10 of the total number of voters that were in the last general election. It is very cost prohibitive for a disfavored minority to be doing that. Judge sutton changing hearts and minds is one of the key goals. Is it it worth the expense . Changing hearts and minds through the democratic process. Isnt that better . Carol stanyar fundamental Constitutional Rights may not be submitted to popular votes. They depend on the outcome of the elections. Judge sutton my question is assuming you can win on this. I am asking you it is not obvious to me why the better route, it may be the better route for your clients, and as a lawyer you have to keep your focus on that, but it is not obvious to me that it is the better route for the gayrights community. Carol stanyar i am not at all optimistic that we could do that in michigan. In front carol, the government made the same argument. We will wait for the passage of e. R. A. That was 1973. We would still be waiting now. The ban brings injury. Marriage brings unparalleled meaning. Commitment, mutual responsibility, dignity, security, status, stability. They go well beyond the deprivation of the right to marry. Michigans law are pervasively discriminatory to samesex marriages. All parties agree, during this trial. This is a look she is a legal stranger to reverse on. To her son. The band brings psychological injury. We have had the doctor explained that no matter how competent devoted, caring, that second parent is, from the childs perspective, some children will suffer from an ambiguously nonpermanent relationship with the second. In the majority, these bands humiliate children. They do evaluate they devalue samesex families. The ban brings shame to these children. The injury is unjust and on and cruel to our clients. An emergency nurse taking in and caring for special needs children. They took them in. Judge son these would judge sutton these arguments would be powerful Carol Stanyar we think that the marriage amendment the test their would be that it requires a connection that is missing here. The mother, father rationale. The ban is not increasing the motherfather families. It is not deterring samesex couples from marrying, having children, and raising them. Judge sutton that is the whole point of it. That the legislature can address a problem one step at a time. The fact that it is over inclusive or under inclusive that is what the court means when it says improvident decisions can be corrected through the democratic process. That seems like your point. If you care about children, you should care about the children of these marriages. If you care about love and affection, you should care about these couples. They are just as capable of love and affection as the others. That is not how rational basis for review works. Carol stanyar in a series of cases, the court struck down laws outline what the court called invidious under inclusion. Striking down laws that were riddled with exceptions. Judge sutton those were unprecedented loss. Windsor was an unprecedented law. If there is one thing we know in this case, this definition, for better or worse, is not unprecedented. Carol stanyar to the extent that the Court Considers this a one factor test now, lets assume for the purposes of argument, that the test is whether it is unprecedented in the sense of never allowing samesex couples before. Whether or not it fits the rumor , windsor characterization. I do not agree that it is a one factor test, what i see the court doing is looking at these laws in full context. A number of factors using a more total calorie totality it matters that this was a constitutional amendment, and i will distinguish that in a moment. Judge sutton it is saying that Police Officers have to retire at age 50, unless there is a correlation between age and fitness. That is a ridiculous law because you have 50yearold doing triathlons. I am sure that it was deeply offensive to 51yearold Police Officers who were more fit than their 40yearold colleagues. That just gives you a sense of how tough it is to get through rational basis review, or overcome it. Carol stanyar the standard is not a toothless one. Eisenstadt contraceptives to married persons. Marino, only hippies were denied food stamps. All of those were rational cases. The state talks about the robison case. They best saying that the state only needs to show that the inclusion of the included group furthers the legitimate interests of the state. The court found that the line drawn there, rationally distinguish between the two groups. That there were good reasons that Conscientious Objectors could be denied it were not similarly situated with respect to those benefits. In cleveland the law failed rational basis because the purported rationalizations did not make any sense in how the law treated similarly situated in important respects. With the biology rationale michigan has a robust policy of adoption. It allows single, day, and lesbian people to adopt. Adoptive parents have the same legal rights. The ban does not deter any of those ties. Cases are struck down under rational basis that are riddled with exceptions. Procreation to marriage. Another disconnect thet. Equal protection under constitutional law doctrine, distinguishes between marriage and procreation. A contraception case, the court found that married persons had a constitutional right not to have children. In skinner, as far back as 1942 have a jewel criminals cannot be subjected to forcible sterilization. Not a marriage case at all. The right judge sutton unintended pregnancies. There is another disconnect. Carol stanyar it is the same problem, with procreation. The ban doesnt do anything to distance sent to five this incentivize the band doesnt do anything to keep it away. The idea of accidental procreation is a nonrationale because there is a disconnect between up purported purpose and the law that is in place. The right to procreate is clearly independent of the right to marry. Just olea said that in lawrence. Just Justice Scalia said that in lawrence. The state is now arguing as a factual matter which is a different argument than what we faced in the District Court. The voters must have believed that the motherfather families are preferable. That claim is based upon the rational speculation, it is based upon disproven irrational speculation. The social science consensus answer is that it does not matter. Parents are what matter. The parentchild relationship matters most. The relationship between two parents matter. In the District Court, the state fully engaged in this process. They offered expert testimony. On the motherfather russia now. Judge sutton this seems to be at the heart of it. I saw a statistic in 1985, 25 of americans knew someone who was gay. In 2000, 74 percent of americans knew someone who is gay. When you see that statistic, you realize that social science statistics have nothing to do with this. All of this change is a result of the concrete trumping the abstract. Gay people knowing that they can have good relationships and the great parents. What is a little odd to me about the plaintiffs position in these cases is that it doesnt show much tolerance for democracies for democracies being a little bit slower than we would like. I mean, we have 21 states including the district of columbia, in one way or another now recognizing gay marriage and we have a lot of other states that i suspect are pretty close and some other states that will probably take a little longer. The change doesnt have with social signs. The change has to do with people knowing one another and seeing there is no reason for these distinctions. Its just odd to me that the Supreme Court chose not to deal with this issue two years ago. Thats something of a pacing decision. It stayed all these decisions. Its something of a pacing decision as to when the right is recognized