all of you coming to talk about the book today. the case he talks about is about a man sentenced to life in prison with no possibility of parole for 50 years were steeling $153 videotapes from a k-mart store. he received the prosecution even though he never had committed a felony. california is the only state in the country where a person can receive a life sentence for shoplifting. after he received this sentence, he appealed the california court of appeals on the ground it was cruel and unusual punishment. they denieded review. he then wanted to go to federal court and the rid of habeas corpus and being held in constitution by the laws of the united states. his claim was that the sentences was cruel and unusual punishment in violation of the eighth amendment. there's no right to a lawyer in federal court with habeas corpus if convicted in state court even if which was a capitol case. he lost. the judge rejected his claim. he then filed an appeal on his own to the federal court of appeals. someone within the 9th circuit. i don't know if it was staff attorneys or judges, but this is a case where the judges where he would be represented. i received a call saying will you represent pro bono and handle the claim that's cruel and unusual punishment. i've been involved representing others with similar claims, and i agreed to do so. i won in the ninth circuit two to one. they said that no one in the entire history of the united states had ever received a life sentence with regard to shoplifting until this. i lost 5-4 in the supreme court. the supreme court said states decide the appropriate punishment for crimes, and it wasn't cruel and unusual punishment. he's now eligible for parole in 2046 when he's 87 years old. >> you talk in the book you took the case to supreme court how the bush administration's department of justice took an active interest in fighting you in the case. this represents what you talk about the conservative assault on the constitution. walk us back to the nixon and reagan administration and the department of justice and define for us what this conservative assault on the constitution means. >> since richard nixon ran for president in 1968, conservatives sought to change some basic constitutional principles. the point of the book is that a very large extent they succeeded. we don't realize it, by the way, because it doesn't happen all in one case, but the supreme court does occur in a series of decisions. not every decision has a conservative outcome. the most important targets for conservatives like rowe vs. wade has not been overruled, but there's been a change in so many areas of constitutional law over the last few decades, and all to the right. i don't think conservatives and liberals disagree over the description that i've given, but certainly they would di agree on whether it's desirable. i begin the book with a story of this man to pose the question how could it be that the supreme court would uphold such a sentence that's constitutional. the rest of the book is answering what the court has done in many different areas of constitutional law. >> one of the points you raise about the case is the way in which we talk about the constitution any country is void of human suffering. in this case, there was someone clearly suffering and in an unjust way. you brought that before the court, and we heard a bit of discussion around the society sotomayor nomination. what makes a good judge, and how important is empathy in the way we talk about the constitution? >> justice on the supreme court, the judges at any level often have discretion. let's just think about a trial judge in arizona's file clerk and there's a question whether or not a police search or police arrest violatings the fourth amendment. what's reasonable and unreasonable isn't determined by the words of the constitution or the intent of the framers. it's a judgment call that judges in this state and all over the country have to make lit ramly -- literally every day. when you get to the supreme court, almost everything they decide matters of tremendous discretion. what's freedom of speech? what's cruel and unusual punishment? what's due process of law? even if we could agree on all of that, no right in the constitution is absolute. the government can infringe even on basic rights if it shows compelling interest. what's a compelling government interest? judges and justices have to make choices, and one of the things e react against in the book is those who try to pretend there can be valued niewch trail judges. there's never going to be there. there never can be that. judging is a human enterprise. we want judges to consider many things in making decisions. we want them to consider the text of the constitution that's most important, want them to consider what the framers of the constitution thought. we want them to look at the sweep of american history, what's that taught about the meaning of the constitution. we want them to look at precedence, the appropriate policy arguments, and we also want them to look at the human dimension. to me, empathy is part of the equation. empathy doesn't justify ignores precedent or the language of the constitution, but deciding what's reasonable or compelling empathy matters. i remember when president obama said he wanted to appoint justices with empathy and was ridiculed for that. all i could think of with a response is someone without empathy is a sociopath. we don't want that on the court. [laughter] in the justice -- >> in the justice roberts nomination before the senate judiciary committee, he raised a language that judges should be like umpires and no one goes to a game to see the umpire and the umpire calls the balls and the strikes. this is within a larger language of originalism and a reaction again this idea of judicial activism. i was wondering if we can curve that language a bit and see what's really there. is originalism a real doctrine for interpreting the constitution? are we seeing that conservative justices use it and then ignore it when it's inconvenient? >> first be clear about the words we're using. originalism is a philosophy in developing the constitution. it's entirely one that's used by conservatives. interpreting the constitution, the courts should look only at the text in the original meaning of the constitution, but the constitution means the same thing today as when the provision was adopted, so if it's part of a text in the first seven articles of the constitution, they were adopted in 1787, it means just what it did in 1787. it rejects the notion that the constitution is a living document. scalia is the foremost advocate of this theory. i think there's so many things fundment tally wrong with the theory that's it's not even plausible. for the vast amount of issues we face today, the text is silent and the framers never thought of them. it's out there to be discovered in some way. it's what we invent. so many people were involved in the constitution, radification. there's one original intent there to be found. let me give you examples of this, and i'll give you examples to support what your question implies. article two of the institution refers to the president and vice president with the pronoun he. there's no doubt that the framers of the institution that the president or the vice president would be men. if we were to follow the original intent of the institution, it would be unconstitutional to elect a woman as president or vice president until the constitution was amended. there's no provision in the constitution which says the federal government can't provide equal law. the state may deny equal protection laws. the 14th amendment was meant to be just limiting state and local governments. if we were to follow the original understanding of the framers, then there would be no limit on the ability for the federal government to discriminate. it would consistently lead to absurd results and not lead to results at all. a quick story before i respond to your direct question. for two years in the late 1990s, 1997 and 1999, i served as chair of an elected commission in los angeles for a new charter for the city. i was elected from my city counsel district and individuals from los angeles. we were to pose a new charter for the city. i don't know local government law in arizona, so i don't know if you function the safe here as in california, but a charter for a city is much like its constitution. it creates the entity of the city government, the city controllers, al gaits powers among them, says how government operates, includes things like the civil service and government workers, and it can provide more rights than the u.s. constitution or the state's constitution. we worked hard for two years to draft this constitution, and then in june of 1999, the voters of los angeles adopted it. almost as soon as it was adopted, i began to get phone calls about what we meant for specific provisions. almost always we just never talked about the issues that arose. we just hadn't thought about it. occasionally i can say, well, my recollection was -- if they like my answer, the mayor says, can you write a declaration to the effect? if they don't like it, they call other commissioners in the they got one who says what it was. [laughter] we were all then still alive, very recent. if you couldn't come up with original understanding a year or two after the document was framed, you can't 100 years later. i point out to my students, all the instances in which hamilton and franklin disagreed. there were many instances they don't follow original intent at all. take affirmative action. if there's any place i think we could say there's a clear intent is that the framers of the 14th amendment would have approved what today we regard as affirmative action, race-based remedies. they adopt so many race-conscious programs. yet, it's interesting here the conservatives on the court who are originalists, scalia and thomas never mention the original intent. you can get a better understanding of the robert's court in the 2008 republican platform than you can by reading the federalist papers. [laughter] [applause] >> the language of originalism has a remarkable amount of political salience. in some ways that's with the fear of judicial activism and the fear judges are running amuck. that's a language adopted by presidential candidates, and now we're seeing it having a strong role in the tea party movement. what is the kind of language that you would use to describe the role of a judge that we could enter into the conversation about the constitution that would replace its emphasis on originalism? >> i'll go back to what i said a moment ago. originalists say the meaning of the constitution was fixed at the time it was adopted, but it's not a living constitution. i think, of course, it's a living constitution. any organism in order to survive has to be living. the alternative is a dead constitution. it has to be adapted. john marshall, the great chief justice of the united states very early in the 19th semple ri said we must never forget the constitution to the adapted and endure for ages to come. he, in the early 19th century, recognized the living constitution, and he was one of the framers of the constitution, so what does a court look to? you always start with the text. if the text is clear, then that's what's followed. rarely can you find answers to the issues that come with the supreme court in the text of the constitutionment take the second amendment. it says a well-regulated militia people with arms should not be infringed. does that mean people have a right to have arms only for the purpose of militia service or can they apart from the militia? the text can't tell you the answer to that. look to the original understanding and try to find something there. well, the problem here is it points in conflicting directions. there's some who obviously believed that there was a right of individuals to have guns apart from my mental anguish sha service because -- militia service. james madison refacted to the amendments and he had a clause with an exemption from military service for conscientious objectors. you then can look to history how is the second amendment interpreted throughout the course of history? precedent from the supreme court. from 1791 until 2008 the supreme court never found any law in any level to violate the second amendment. every supreme court case from 1781 to 2008 said that the second amendment of just about the right to have guns for militia services. look at policy considerations. what's the best way for society to interpret it? these are the things that judges and justices have always done. there's nothing new or radical about it. what's new is some judges want to pretend they are doing something different. >> i wanted to talk a bit about the robert's court. justice roberts is in his mid-50s and if precedent is an example may live into the court in his 90s meaning we may well see a robert's court in 2030 or even 2040. how much do you think that this court will do to change the fundamental nature of the constitution? >> john roberts turned 56 in january of this year. if he's on the supreme court until he's 90, he'll be chief justice into the year 2045. sam's going to go to yale law school next year. most of his career as a lawyer, john roberts will still be chief justice. what effect he has depends on who wins the next presidential elections and fills the veigh cay sighs on the supreme court. the current court has four justices who as conservatives since the mid 1930s. scalia and thomas are the most conservative justices there since the mid-1930s and roberts and sleet toe vote with him. on the other hand, there's society -- society my your. this is her first term and prior to judicial opinions to scrutinize. only wrote five major law reviews as a law professor. she never wrote pieces and made statements to the media. that could explain why where she's at. [laughter] assume that those four justices are likely to be together and the courts are divided. that leaves anthony kennedy as the swinging justice. that's why people refer to this as the kennedy court. the kennedy sides with the conservatives more than the liberals. last year there were 12 cases that were 5-4. the 4 conservatives and 4 liberals. kennedy sided with the conservatives 10 tines. kennedy sides with the conservatives twice as often than with the liberals, but still kennedy is a key swing vote for the liberals in some areas. i think there's four votes to overrule roe vs. wade. kennedy won't be the fifth vote to overrule the court decisions with regard to school prayer. we don't know if tee had been the vote to overrule affirmative action cases. whether the conservatives get that solid fifth vote or whether they are denied that depend on the next vacancies. think of this, imagine that either al gore or john kerry replaced renquist and o'connor. on the other hand, imagine if john mccain placed both david suter and john paul stevens. there would be a majority to overrule prayer and other things. >> could you talk a bit about, and we talked a bit before about the presidents who nominate justices, and that's an ignored part. could yowl talk about the infrastructure that goes into this conservative assault, the federalist society and the ways in which this is funded, and there's obviously now we have conservative legal faculties, some of whom you're very close with, but is this part of the conservative assault on the constitution? >> i don't mean to imply there's anything insidious. what i was speaking of is the intellectual aspect of it, and i think that conservatives have done a terrific job since the early 1970s of developing a conservative philosophy of the constitution. it's one that challenges so many basic premises of constitutional law since 1937. since then, we've excepted a few aspects of law. one is, we give congress a lot of authority to adopt programs that benefit society. think of it in terms of social security or medicare and medicaid. the court has basically since the huge shift during the new deal to the business of the role of congress to be able to do. in few federal laws instructed is succeeding congress' power. the other thing is we accept the rule of the federal jew judiciary to expand and advance individual liberties, and so thinking of the civil rights movement of the 1950s or abortion rights, the expansion of privacy. this is what the federal courts have done. conservatives strongly oppose both of these tenants of constitutional law. they've done so intellectually in terms of what law professors have written, and they've done it in litigation. it's now coming into fruition in the courts. three examples, the challenge over the federal health care law, the challenge of california, and over arizona's sb1070. these are fights over the constitution in challenging the basic premises of constitutional law. it's not surprising that the tea party rhetoric is on reclaiming the constitution. it's not surprising when republicans got the house, the first thing they did was read a version of the constitution into the record to say that they were trying to reclaim the meaning of the constitution. i think we're in a major fight for the meaning of the constitution. it goes to challenging these premises of the constitutional law that have been there since 1937. >> can we wade into the cases pending before the court or will be lead to a supreme court ruling, and the health care cases that have come out so far, there's split. some justice the ruled that this is constitutional and others ruled that it's unconstitutional, and for awhile, this case was dismissed as a fringe argument because this was clearly a constitutional mechanism to regulate the insurance industry. related to that and kind of bringing it home in arizona, there's a number of challenges to the authority in the federal government where you just had a debate over a nullification bill in the state senate which was debeeted, but others measures might pass giving the state power over domain over property and another measure opting arizona out of the clean air agent. there's an assault of the power of the federal government both in the working through the judiciary system and also in the kind of political discourse. >> this suspect new. this isn't new. throughout american history they fight over state's rights. in the early 19th century those who opposed slavery did not by defending slavery, but by invoking states' rights. by the early 20th century, those who opposed federal regulation like child labor laws and minimum wage laws did so successfully in the state's rights. in the 50s and 60s, the opposition to desegregation was on grounds of state rights. it's long been there. now, many of the examples you point to are just symbolic. no state can declare it's going to ignore federal law. no state can declare imminent domain power over property owned by the federal government. states can do what they want, but it's not constitutional. the symbolic things matter in politics. the federal health care regulation is obviously a major issue. i don't think it's a matter of constitutional law. since 1937, the supreme court has said that congress can regulate economic activity which taking accumulatively has substantial effect on interstate commerce. the last case was gonaslez vs. race and could punish cruet vaition of small amounts of marijuana for medicinal use. it could keep them from growing marijuana for personal use to alleviate the effect of chemotherapy. if they can regulate growing marijuana, it's hard to believe they can't regulate a trillion dollar industry. [laughter] think about it in terms of the test, congress economic activity its substantial effect in interstate commerce. well, the argument is that the individual mandate, if congress isn't regulating activity, they don't want to buy health insurance. everyone will need medical care at some point in his or her life. children have to be vaccinated to go to public school. in a car accident, you go to the local emergency room. people have two choices. they can self-insure or they can purchase insurance. either of those is an economic decision. either of those is economic activity. taking accumulatively across the country, there's a substantial effect. $860 billion industry. i don't think it's a constitutional or close question. it's whether or not the federal health law is constitutional, but politically it's deeply divisive and the political decision can effect what the supreme court does when it gets there. >> where do you think the court comes down on this question? >> 5-4, with justice kennedy in the majority. [laughter] i find so hard to separate my prediction from what i think should happen. [laughter] i think this is an easy constitutional question, so i think the court will uphold the law, but i'm surprised two district courts find it unconstitutional by the argument it's not economic activity to choose not to buy insurance. >> i won't ask for more prediction, but let's talk about cases already decided. the citizen's united case in some ways reversed a long precedent about what the first amendment means in terms of elections. what do you think about that case? are you already seeing the damage done to the electoral process? >> yes. it's a decision from january 1, 2010 to show that corporations and unions have the rights to spend unlimited amounts in independent expenditures from their treasury for candidates elected or candidates defeated. they could spend money before citizen united, but they had committees to do so to raise the money. now they can use the money from their treasury. i think this is an enormous effect on the american political system. i'd like to talk about the case from the perspective of the questions you asked me earlier. are conservatives more restrained in approaching the constitution than liberals? usually there's restraint as about deferring to the government upholding laws, think this puts striking laws down. in citizens united they struck down a statute that was passed by congress in 2001 and signed by president bush. we think that the courts more restrained if it's following precedent and more active if overruling precedent. well, in 2003 mcconnell vs. courts overruled -- we think the court is being more active if it's ruling broadly. citizens united come to the supreme court on a narrow question, and the justice asked for a new briefing as to whether or not to overturn the precedence. conservatives keep saying they want to follow the original intent of the framers. i challenge anyone to show me any indication that the framers of the first amendment meant to protect corporation or any indication that the framers of the first amendment meant to prevent spending money in elections as speech. let's be clear rmt i'm not saying that conservatives are -- the conservatives on the supreme made a choice with citizenned united, but we shouldn't close that saying they were umpires in doing so. they needed dramatic choices in terms of the meaning of the first amendment to profoundly effect our political system. [applause] >> another set of cases in the supreme court raise questions to what degree conservatives are being differential to legislatures raised in second amendment cases involving gun laws in washington, d.c. and in chicago. they were put in through local government and were heavily supported by local police organizations as a necessary way to reduce crime, and in both of those cases, the supreme court ruled that the gun laws were unconstitutional. is this another rear where we see conservative justices trying to overturn precedent? >> clearly, yes. the supreme court in every prior decision about the second amendment says the right of individuals to possess arms for militia service. the supreme court in 2008 for the first time in all of american history said that the second amendment has the right to have guns even if not for militia service. the first time they struck down a gun law federal, state, or local. >> going a bit outside the court, we're also seeing an assault on the 14th amendment now raised by graham in the senate in the language of talking about anchor babies and questions whether people born in the united states should have citizenship at birth. what are your views on the meaning of the 14th amendment and how that conversation fits into it? >> the first sentence of the 14th amendment says all persons born naturalized in the united states within the jurisdiction are citizens of the united states. the reason the sentence got adopted is in 1857 the supreme court ruled that slaves were property and not citizens and that therefore those who drafted the 14th amendment wanted to make clear that everyone's who is born here is a united states citizen. in the 1890s, the supreme court specifically ruled that everyone who is born in the united states, whether parents are citizens or not, is a citizen of the united states. that is established law now for well over a century. now, i think it is reasonable to say we should amend the constitution to change that to say that those who are born to parents who are unlawful are not citizens. i can make the policy arguments, but i don't think we should punish children because of their parents' choices, but we can have that debate, but i don't think there's much of a debate in terms of the law that's been proposed here in arizona to say that the state won't recognize the citizen somebody whose parents were not lawfully here. state only the united states government gets to define who is a citizen. i don't think graham's statute can change it. it makes clear anyone born here is a citizen. want to change it? you have to amend the constitution. >> something important to us in the room here today is sb1070. can you talk about the obama justice department case against it and where that will end up? >> there's obviously an enormous debate over the problem of undocumented immigrants. some believe there are tremendous strain on the resources of the state. some believe that they add a great deal to the economy of state and states like california probably couldn't function parts of their economy without them. there are some who believe the federal government is not doing nearly enough to control the borders. some believe the borders are unforcible and the government did all it can. i'm not expert in the field, so i can't express opinions about that, but i realize the passion that exists on both sides. with regard to sb1070 specifically, the supreme court has long said that only the federal government gets to regulate immigration. in a case in 1941, the supreme court said states cannot contradict or complement federal immigration efforts. the supreme court explained that only the federal government gets to have a foreign policy. the problem of states regulating immigration is the enormous foreign policy consequences for the united states. the law that was struck down in this case has many characteristics similar to sb1070. for example, pennsylvania state police to stop people to see if they have papers that show they are legally in the united states. it was declared unconstitutional. the federal judge in arizona struck down the injunction of sb1070 relying an that case and quoting what i did. the case was argued in the 9th circuit in november. the 9th circuit will affirm the court, and it's the notion that states can't have foreign policy, its own immigration policy. i think the court needs to be detailed about those who are passionate about the state, but the state can't regulate in this area. that's the unique role of the federal government. >> on the subject of foreign policy and what the federal government can do, another part of your book focuses on questions of executive power which is something that the war on terrorism and post-9/11 security environment we've had a lot of new questions raised about. you bring that story back even into the reagan administration and the way in which there was a massive expansion of claims of executive power. where are we today in terms of the power executive? you worked on issues related to guantanamo and received numerous threats against you for your work on that, and yet, this week president obama issued an order that he will resume military tribunals at guantanamo bay for the remaining prisoners. what's our nation's journey with executive power? >> i begin representing a detainee from guantanamo in july of 2002. he remains incarcerated there now. we're almost nine years later. he's never had a meaningful hearing. he's never had a trial. our rhetoric that he can be a dangerous man, but he could be innocent. we know so many people taken to guantanamo by mistake. the united states paid war lords in afghanistan to name those with ties to al-qaedas. some named rivals to get them out of the way, some gave names to collect bounty, some collected as mistaken identity. how do we know if somebody is dangerous or innocent unless we hold a trial? he's been there nine years without a trial. that's longer than world war i, world war ii, or the civil war. to me, i'm less concerned whether it be a military tribunal or a civilian court, but there be a fair procedure. i think the difficulty with military tribunals is the way in which president bush initially set them up. they were so biased for one side. they were devoid of being credible. that's why the supreme court in 2006 deemed them as invalid as violating the geneva courts. we have trials regarded as fair and credible to have them in civilian court, but, you know, if there's military try bial, let's do those. the key is to have them. people are still held in guantanamo after all of this time and after all the showing of the violation of rights, and i'm disappointed in president obama for not fulfilling his promise to close guantanamo after a year. i understand that there is no political constituency pressing to do this, that so many on the left who are willing to press the bush administration are not willing to push the obama administration, and they see no political gain in closing guantanamo and only political want, but to me, that's what we want our leaders to stand up and be courageous for something's that's right. what's done in guantanamo is just wrong. >> i'm wondering if you can talk about your assessmentover all of the -- overall of the obama administration. how do you feel overall in terms of constitutional issues? i'm interested in hearing about his judicial nominations. there's been some criticism from the left he hasn't nominated progressive judges or invested the political capital to get those who he has nominated confirmed. >> there's so much in that question. [laughter] in so many areas i admire what president obama has done and other areas i'm critical. i'm critical of his continue assertion of state secrets doctrine to keep people who have literally been tortured from being able to sue. that's a troubling thing because thing people who have been tortured at the hands of the united states should not be kept from doing something. that's an area i'm critical of what the obama administration has done. other areas where i think the obama administration has done great things. one of the first things was the united states will comply with international law including the geneva court. they remountainoused torture. -- renounced torture. it's important to applaud those as well. you mentioned obama with regard to judges. i think that president obama has decided he doesn't want to invest a lot of political capital into judicial nominees. the difficulty is republican presidents put a lot more political capital into appointing judges than democratic presidents have done, and republican presidents go further from the right than democratic presidents picked from the left. it's a one-way reaction, and i'm disappointed in that. you mentioned one person, that's goodwin lou. he's a young law professor at berkley. he has impeccable credentials. i would regard him as liberal, but certainly on the political spectrum, not all that far liberal from center, but he's the target of a right wing smear. he was nominated earlier, not confirmed in the first two years, had a new hearing a week ago wednesday. there's a federal court judge in san fransisco, ed chen. he's renown, but blocked from confirmation because he was a lawyer for the aclu. not because of his current views, but because he worked for the aclu. when the democrats were filibustering the most conservative of the bush nominees trt federal judiciary, the republicans responded with the nuclear option. eliminate the filibuster entirely unless the democrats agreed to not use the filibuster unless extraordinary circumstances and confirm the most three conservative bush nominees. democrats confirmed those three nominees and agreed to the to use the filibuster. the republicans used the filibuster in the last two years more than any group of senators have in all of american history. you can see the statistic about it, but the democrats are threatened with a nuclear option and took similar steps. i don't put the blame just on president obama, but for the senate as well. >> we have two microphones that are over here if people would like to come up for questions. throwing one more at you and we'll open it up while people line up. one thing haven't talked about and it's not in the book is you are the founding dean of one of the nation's newest law schools, a task you've performed in one the nation's worst economic climates for young graduates. >> you have to remind me. [laughter] >> tell us how that has been going for you and how you've enjoyed the job. >> being the founding dean of a law school is the most thrilling job i've ever had. it's the chance to be part of creating an constitution that will run long after i am. it feels like being on a fast moving roller coaster with multiple up and downs and time is going so fast. an agent said to me last week write a book on what it's like to be the founding dean of a law school. i said not yet, but someday, maybe in a decade or two i will be back to talk about that. >> we're looking forward to it. i emphasize that questions end with a question mark. [laughter] the plural on it is only necessary because we're taking it from multiple people. one question is ideal. [laughter] starting there. >> i'm from springfield, illinois. my question for you is if you would comment on what impact you think it has on the u.s. supreme court that we essentially have a cookie-cutter court now. they are appellate judges promoted. no earls or bill douglass, robert jacksons. i can think of a republican who fits that mold, but i can't now. what impact does that have on the court? >> i'm very critical of it. it's not -- eight of the nine have been federal court appeal judges briefly. kagan had not been that. she was solicitor general to being on the supreme court. the cookie-cutters are troubling in other ways to me. they can claim to have a justice raised in new york, but there's two justices that grew up in mississippi, and one that was appointed west of the mississippi, and that's justice kennedy. look at the most recent justices and where they went to school. kagan, princeton and harvard. alito, princeton, john roberts went to harvard and then law school. i think that leads to my focus that is very troubling. also there's a narrow range of experience. few of the current justices spent significant amounts of time as trial judges or lawyers. society new have that experience. i think that affects the court's ruling and there's examples where they have begin the guidance they should be getting. i agree with you. i would like to see the president appoint the next earl warren. i think janet napoltano should be elected. we think of other examples of that, but i do think -- one more fact, when the supreme court decided brown versus board of education in 1954, not one was nine justices had been a federal court appeal judge. many came from political backgrounds, people like hugo black, a senator, earl warren, a governor. all nine of the justices had been federal court appeal justices. i think we need more diversity background on the supreme court. >> citizens united, the target corporation gave a lot of money to a candidate for governor in minnesota, people protested and boycotted target. recently i've heard there's a boy cot movement towards the bank in wisconsin because governor walker received a lot of money from them. do you think the market place mitigates citizens united? >> only if there's much stronger disclosure requirements. one of the problems on the last elections is it is very easy for corporations and likely for unions to hide their contributions. they can create fronts so it's not known. there's an effort in congress last year to pass a stronger disclosure law called the disclose act, but it was prevented. if we can have those kinds of disclosure requirements, then there's that kind of accountability, but if there's not disappointed close sure -- disclosure, we don't know who to hold accountable. >> i'm mary, and i am concerned about what's happening in wisconsin with governor walker, and what they have done, the republican congressman senate and the state of wisconsin. is there any chance they can call that unconstitutional? the people who trying to fight what they did. that's really concerning me. i was wondering on that. >> i think under the wisconsin constitution, there's a strong basis for challenging what was passed on the ground that there wasn't a decorum. i think the procedural device that was used to pass this without the democrats being present and without there being a quorum, they have the challenges that doesn't meet the requirements of the wisconsin's constitution in meeting law. in terms of the substance of the bill, you can't argue it's a constitutional right to have bargaining rights that they had. they were just taken away. i think this bill -- i think maybe is successfully challenged, but i think there's not a way of keeping states from adopting this kind of legislation as long as they do so in a procedurally proper manner. >> marty from atlanta, georgia. if the constitution is a living document, what is to prevent a court from skating around constitutional protections by saying, well, times changed and technology has changed? >> that's always been the risk. the reality is the supreme court says times have changed. an example with nonideological and another is more ideological content. in 1934, the supreme court had home loan case before it. it involved a minnesota law that created a two year moratorium on foreclosure of farm mortgages. it was adopted during the depression. there's a provision in the constitution, article i section 10 that states have the obligation of contracts. the specific purpose behind this was to prevent such debtor relief laws. this seems clearly unconstitutional because the states had the rights of the bank, and a conservative supreme court said there's no answer to say this is what the framers thought. this is 5 living constitution. better is the brown vs. the board of education. the same congress voted to segregate the district of columbia public schools. if we follow the framer's intent, it seems brown is wrong. chief justice earl warren, we can't set the clock back to the 19th century. we have to decide the case in the perspective of today. there's danger in giving courts the power of judicial review. you identify what it is, but our society there's a bigger danger in not having it. >> robin from oral valley. many states have laws requiring automobile insurance. you have a car, you purchase automobile insurance. what is the difference between states doing that and this entire problem with the federal government and obama's health care requiring health care for people? >> those who oppose the health care bill would say you have a choice whether or not to have a car, and so you can choose not to have a car. if you want a car, you have to have insurance. i usually think those who made that argument never lived in the city of los angeles. [laughter] that's the argument they make. the other thing that's relevant is the challenge to the federal law 1 that congress -- is that congress lacks the power to do this, this authority to regulate commerce among the states, and so what the states can do this is different whether congress can do this. the basic principle of constitutional law is the states can do anything and congress only that which is authorized by the constitution. it doesn't answer the question whether congress can do this. >> at the end of world war ii, we held tens of thousands of german prisoners of war, and i don't know that there was any movement to give any of them hearings about whether it was -- whether their being held was constitutional or permitted by statute. in the case of the guantanamo people, on what constitutional basis or statutory basis would you say they are entitled to some kind of hearing? >> first, of course, all of those who were held were repay treeed. second, i believe that some law must apply whenever a government is holding a human being. we can say it's international law. we can say it's domestic law, but it cannot be that any human being can be imprisoned in a lawless manner. what bothers me most about what the bush administration's position was when it comes to those in guantanamo, they are not entitled to the protections of international law or the constitution so the bush administration was constrained by no law whatsoever, and that can't be right. my answer is as to guantanamo, the united states supreme court said in two separate cases whether sole vs. bush, that the constitution applies to guantanamo. i think the supreme court said that the yes geneva courts apply to those held in guantanamo. it's those laws to be followed. >> almost out of time. one more brief question. >> i recently read an article about the supreme court arbitrarily overturning the decisions of the 9th circuit court as a means of essentially chastising that court. i don't know the in's and outs of the law, but if that's so, suspect that unethical to overturn a decision just based on chastising the court rather than the merits of the individual case? >> i don't think that's solid. i don't think the supreme court overturned the circuit. people make far too much of reversal rates. they reverse the lower courts 80% of the cases it decides, so then you have a year like last year where 100% of the cases from the 6th circuit were reversed. well, yeah, but 80% is the average. you know, there's 100%. people say the 9th circuit was reversed 85% of the time, well, the average is actually 80%. the reality is there's judges on the 9th circuit who are as liberal as any in the country and some conservative as any in the country. it's a large, very diverse court. it produces more -- it's the largest court appeals in the country and produces the most cases for the supreme court, but i think the press makes too much out of reversal, but certainly no indication that the supreme court reverses the 9th circuit unless they disagree with the case on the merits. >> i want to ask everybody to thank erwin for joining us. [applause] >> thank the moderator. [applause] >> there's a book signing outside and i encourage you to buy a copy of the book, and i again thank you for joining us today. .. justice system get started in this country? >> well, it got started right of the turn of the 20th century. the first juvenile court was passed in illinois in 1899 establishing a separate court for juvenile and along with it came a separate institution for juvenile offenders. the system was so popular that it was copied by almost every other state in the union by the 1920's. texas adopted the juvenile court wall in 1907. >> and you write the juvenile justice system has failed in the country. why do you think it's failed? >> kitfield because it's failed to live up to its founding promise, which was basically that it would establish a more protected system for offenders. the juvenile justice system was founded on the concept children where different from adults offenders and responsible for their offenses and they were more capable of being rehabilitated. surgeon files were supposed to be separated from el adults and treated differently from adults its field to do that. today it's very common pleas to see abuse scandals in juvenile institutions that are scarcely different from adult prisons, juvenile courts have adopted most of the same procedural features has adult courts, so to many critics and i guess i would include myself in that group it has failed. >> tell us a little bit about the scandal led west texas state school that caught the public attention and sort of fuelled this issue. >> the scandal broke in the news media and early 2007 and was a sex abuse scandal. as we are sitting here right now the last major figure in the scandal was on trial for years after that scandal to give you an idea how long it's been going on. in this case, a couple of administrators at one of the facilities in a remote area in west texas were coercing sexual favors from boise inmates. several of them using their powers and administrators. this went on for years and it was basically covered up by the higher ups within the state agency that oversaw the institution to read was finally leaked out and then publicized. >> what is a super predators? >> super predator is a word coined in the mid 1990's by a criminologist named john julio and was originally intended to mean kids who kill without remorse without conscience and without randomly captured in some of the popular movies in the purple like natural born killers and the mid-1990s will recall there was a kind of national panic over violent juvenile crime. the word became attached to that panic. it carried out a high racial connotation to and seems to many critics to refer to african-american and latino juvenile to our increasingly over representatives of the incarcerated juvenile population >> what role do you think the race plays in the problems with the juvenile justice system. >> i think it's really central and a lot of ways and i am certainly not alone in thinking that and whether you want to believe that they commit more crimes as some conservative critics believe or do want to believe the system actively discriminates against them or institutionally discriminates against them in some way there's no doubt race is a central factor in the juvenile justice system. >> how is texas a good case studies for the entire country? >> welcome texas throughout much of the play of center was one of the largest juvenile justice system is in the country in terms of the number of youths and institutions that it managed. it's also a useful case study just because of the political and economic clout the state has come to acquire over the course of the last 50 or 60 years in one of the largest states, the most demographically diverse, one of the most geographically diverse states and politically powerful states in the recent u.s. presidents have come from texas. several important national legislatures come from texas. >> why did you want to write this book? what was the emphasis to get you started? >> my impetus to get started on this book was the interest in how we as a society decide who the good kids are and who the bad kids are and then what is to be done with them and i initially began looking at the popular culture and representations of youth and then i became dissatisfied with that and decided i needed to look at real kids and real policies and institutions that affected them. >> where does, after all of your research, where does texas and other states go from here? have you seen improvements since you've written the book or as you were writing the book? >> there's been a lot that's changed since i finished the book. as we sit here the legislators considering abolishing the agency that oversees juvenile justice in texas. several of the large facilities have been shut down as i was finishing the book. lots of kids have been sent back to their communities and there is a movement to move away from being institutions again and being towards the community-based facilities and part of that is driven by the budget crisis affecting many states across the country including texas which is something like 27 billion-dollar deficit to deal with right now. so that is fueling a lot of this sort of progressive movement in some ways. >> great. thank you very much. >> thank you. >> this is a book which is not just about washington, not just about a single washington small firm but about the sort of combination of everything that i've learned from writing about lawyers and law firms back in the day and when you're in newspaper reporter you learn early on underneath every decision and behind every election and every political thing that happens from the smallest town to the biggest city nobody does anything in this country anymore without consulting a lawyer. i started my journalistic career as a reporter in mississippi. from there i went on to the tampa tribune and after living in florida for five years i had decided and the only place i could possibly live the would be better than florida because i liked the more moderate california i ended up to getting a job at a legal paper called the los angeles to the journal. i was owned by not sure if i remembered that the time if it was strictly a legal paper that looks like "the wall street journal" it was john v. beat goodbye charlie that had a journal of there and he's charlie wonder, the associate of warren buffett. i just had left covering courts when i was a kid my father i'm sure this wasn't intentional he kept giving me books about lawyers so i had read all of the books, the autobiography and i remember one of the books i loved the most when i was little was my life in court and i actually got to interview when i was a reporter in california which was one of the sort of drills of my life. and from there i ended up going to -- after writing a couple of stories about the sort of internal law firm problems the big story was a crisis they were having i ended up getting offered a job at the american lawyer magazine which ultimately led to my riding covering the demise of family and my book shark tank. and it was while i was at the "legal times" that i had an idea for writing a story about one of the lawyers williams and connelly why thought had the greatest job in the history of wall which was running a baseball team and the was larry. i went over to his office and he was the president of the baltimore roils. and larry -- i got almost all through the story to the end of the story and then somebody i was interviewing about larry said i guess you know about his illness and i was like sure, right, the illness. and so anyway, i began to piece together the story how at the age of 39-years-old larry had been stricken with mom hodgkin's lymphoma and was the 36th person in the history of medicine to have an oncologist bone transplant. and while he was in recovery of his miraculous recovery from this illness he went to the institute in boston and the typed in the boston red sox games. so ultimately when leary got out of the isolation they said what's the one fever -- what is the one thing you want to do now that you are getting out of the hospital and he said i want to go walk around fenway park and fenway park right here by the way. old pictures of fenway park. well, larry's story i've always thought there was one of the most dramatic and wonderful stories because of course larry, 14, 20 years later larry moly survived against all the gods but managed an even greater -- beat the odds and in even greater way by being the leader of the red sox when they won the world series, the defeat that nobody thought was possible. it was shortly after meeting larry and telling his story and the "legal times" i signed on to cover the iran contra hearings and that is when i first encountered brendan sullivan sitting a few weeks behind him in the press row in the senate while he was representing and when brendan sullivan can to represent you, the room what crackle. it still crackles. when i walked into the ted stevens case trial this year, you know, there's an electricity in the room that your present with some of the great lawyers. as a reporter i was pretty lucky to be able to be in trials with people like melvin and william and i was going to mention jim coleman who is now at duke university when he represented ted bundy in some of the death penalty appeals. when you're in the presence of these great lawyers it's a spectacular feeling. some of you may have heard -- if some of you are watching boardwalk entire, anybody see the last episode where arnold, the guy that fixed the 1919 world series is preparing his legal defense and one of the characters in the program said arnold, you should be a lawyer. and he replied without sort of missing a beat, he said i'd rather continue to make my living honestly. so there's a lot of lawyers in this country that sort of don't necessarily all shout or praise on the legal profession. but fortunately, i've been able to be around some of the best and the greatest. when i used to do my 50 best lawyers stories for the washingtonian every year it would occur to me and i would list three -- usually i would limit to three and david kendal who is over here would be on there and then sometimes i would rotate the third spot. richard cooper i think was on their one year and bob barnett was on their one year and i was thinking i could put like ten. williams and connally has at least ten and brinton and david would probably see 50. so i always thought the story of williams and connolly would make a great book. a few years ago the washingtonian i did a piece called the firm that runs the world in which it talked about a lot of the sort of concentric circles and some might say conflicts that still enveloped this legendary firm for example that represented the tobacco industry and the supreme court cases involving whether or not tobacco should be treated as a drug by the food and drug redmon attrition. but they also represent the parties concerned institute. one of my favorite ones involved bob barnett. when this week with david brinkley used to be on every sunday morning and it struck me williams and connelly represented the network of broadcasters show abc, they represented all of the talent that was on the show as john -- george will, brinkley, cokie roberts, sam donaldson. most of the time they would represent talent that was on the show. james carville and matalin for it simple, and then to sort of cap it off, the with the attorneys archer-daniels midland which for many years part of which is told in the movie the informant with matt damon, aubrey daniels role. anyway, as i looked at brendan sullivan's career over the entirety of the 35 years i used to always say in my articles about him and when i was talking to people i would say brendan sullivan has gone 35 years and has never had one client serve any time in jail which was pretty remarkable because by the time people came to him they were usually pretty far up the creek. it wasn't like he was defending, you know, too many roman catholic nuns or that sort of thing. and after a while allied began to wonder if it was true. was i just saying this or sort of, i just repeated the story so many times that i believe it or not. what i tried to do is go back and talk a little bit about why brendan sullivan has this passion that he has and with the pattern is from when he first came to williams and connolly after being a defending prisoner at the stockade in san francisco and the cases when prosecutors sort of routinely -- the discover prosecutors didn't always be haven the most correct manner possible. and i sort of came to realize and i think i explained in the book why he is the way he is and why his cases turn out the way they do. and one of the best examples is the case of tax fraud case that she had handled where he was going through the documents the government had given him in this high-profile case. and one didn't look right. the others were yellow and this one looked okay. so he held up the paper to the light and had his investigators check out the water mark and they were able to prove the paper wasn't manufactured until after the document was supposedly tight and the prosecutor hadn't been able to find -- hadn't been able to find the original document so she had it retype and the was a sort of classic brendan sullivan which we saw a lot of in the ted stevens case when he was able to prove that once again prosecutors failed to provide all of the exculpatory evidence that they are usually required to do. and in the broad case which just concluded in sort of the same results. so i do find it kind of interesting to me that a lot of conservative politicians railed against the awesome power of the federal government especially in the last couple of months brendan sullivan has been a foot soldier in the fight against power misuse of power by the federal government for 35 to 40 years and a lot of these other people are perfectly willing to give -- to create new laws and meet federal crime out of everything they can and give more power to prosecutors and don't see any inconsistency on the positions. i don't mind which won they take but it seems a little bit inconsistent. so i had taken all of this and i was able to convince st. martin's press to write a book about the world of big-time washington law and looking and it through the lens of williams and connolly which is what i try to do and tell how in the basic threat of the book is to take the five main characters of my book which are brendon, david kendall, gregory, bob barnett and larry latino and talk about how within the law firm and by the people that have left the law firm to pursue careers as larry did in baseball or jeff did with his co or nicole at the sony corporation or other people in the bechtel corporation or marriott and how the direct line from the savings and edward bennett williams and what he taught these disciples has met in terms of american business and law and made this a tremendously unique firm and in a lot of other ways i pointed out unlike firms they don't take lateral partners for the simple, they don't engage in self promotion or have offices outside of other places. so this sort of the book is about and kind of like a sort of unlike the one you might get from the comment from arnold rothstein and the entire board what. and i think my characters are all exemplified in the best in the american profession which is sometimes difficult to say because when you go from writing free trade publication as i did at the "legal times" and american lawyer although american lawyer was a sort of antiprepublication to writing for the general-interest magazine like a washingtonian you are expected to handle lawyers all the time and not give them much of a break but there are some great people in the profession. james over here one of the grateful years in america, thank you for coming as well. if anybody has any -- [inaudible] [laughter] >> if anybody has any questions, shoot them out here and i will see if i can make some sense. [inaudible conversations] >> [inaudible] >> robert barnett has built this incredible practice and one of the things that enabled me to call this the world's most paulo firm is the fact that bob barnett's practice he represented the three presidents, all the vice presidents, all the cabinet secretaries called the major media figures in the country, the anchors on both the network and the broadcast placing all the powerful people in washington amount like pieces on the chess board. he started it all with geraldine ferraro and i was interviewed when i called geraldine ferraro to talk about her relationship with barnett and how that led to this incredible remarkable practice that he had it was just about the time sarah palin had been named to be the vice presidential nominee by john mccain who wasn't a williams and connolly client, by the way. and so, i said just sort of at the end of my questioning of ferraro about her relationship with williams and connolly, i said it has -- have you talked to sarah palin? you now share this distinction being the only to women in american history to be nominated for vice president, has she called to talk to ask you what it's like or what might be like or anything like that? and she said well, she said no, but then she said actually, senator mccain called me and i called him back. he called me to tell me what he had done and i called him back and i said wish her luck and he said she's right here, i will put her on the phone. and so he put sarah palin on the line and she basically had no clue who geraldine ferraro was. the conversation was very short and so when sarah palin's book going robie can now, there is a whole page in there about how sarah palin had been going around the country talking about how great geraldine ferraro was and geraldine ferraro called her to think her for the shot out on the campaign trail. so i called geraldine ferraro and said hers council will but different so geraldine ferraro reported the story as she told me the first time so i was satisfied to put it in the book. but i did -- sarah palin is a very attractive person, has a lot of energy. i don't see how anyone can't like her. i watched her show the other night and saw her stand up to the grizzly bear but she can tell some whoppers is all i can say. the woman who does know some whoppers. [laughter] anybody have any other questions they would like to ask? >> i hope you enjoyed the evening and i will go over there and sign some books. [applause] thank everybody for coming. we are here of the national press club talking with jewell about his new book joe biden. can you tell what you discover about the vice president that were not previously known? >> welcome almost everything that is known about joe biden is known because the jul did we see is the joe biden that's fair. he says everybody knows and is accused of talking too much and being because he talks too much that is the man, that is the way he is and one of the things that isn't known. the surface impressions of him is that he's an extremely intelligent man, extremely well read and read it politician -- very good politician. and i think there reticule that he has faced over his career has the very unfortunate because it reflects the substance of the man. >> did he provide you access to the book? did you actually have access to him correctly to the book? >> i had a free and half hour interview with him but also greater access to other members of the family. i interviewed 120 people here in washington and the senate and the state of delaware and went to law school and then scranton where he was born. one of the amazing things is it's hard to find anybody to say anything negative about joe biden because he's a very outgoing and personable guy and as i found out extremely honest. he had the one episode in his career he was accused of plagiarism in 1988 for the presidential campaign he was deeply wounded by that because it went to his sense of integrity. he's a person that often says when he makes a speech were talking to a group he uses the expression i give you my word as a biden and it's very important to him. the episode in 1988, 87 actually it was when he was accused of plagiarism, that caught up to him quick because he felt that wasn't him. and in fact one of the reasons i was told by the family that he decided to run for president a second time to deal with that blemish on his career. >> thank you very much for your time. .. a little over 30,000. when he was five, george washington died. 240 miles away at mount vernon, washington d.c. it took seven days for the news to travel to new york city. it wind cornelius vanderbilt died in 1877 the first telephone had been installed in the white house. during the lifetime of the first taken america moved from being of world agricultural society to a corporate industrial economy. this colossal change is eliminated by mr. styles in his book about mr. vanderbilt. leading into this conversation is paul hutton, our neighbor from mexico. an eminent historian, professor of history at the university of new mexico, well-known for both scholarly and popular authors. he wrote the award-winning phil sheridan and his army. he also has his jesse james book over there. we will have about 45 minutes of conversation after richard will have a question and answer from the audience. after this presentation the author will be signing in the mad and signing area. if you go out the doors, turn right and head down toward old maine. books are available right outside the door. >> housekeeping, the festival is free. we have wonderful stimulating