Transcripts For CSPAN2 Key Capitol Hill Hearings 20160705

Find that last couple of sentences to get that out is certainly on the descent, which for me took a little longer without just as scalia on the bench, although it sure was there. So really quickly we have the television died going side going to be no justice quickly on our digital side because that is a big push at cnn and something that really interests me to be able to do that because now in the old days ive been in journalism for a while. Now if we put a story about Justice Scalia up, we can maybe link to some of the oral argument and then maybe link to the interview he gave with Justice Ginsburg for the talk that they gave and maybe a little bit about his sons memorial at the memorial service. It is a totally different world and it is fascinating that push on the digital side now. You actually need to get on air with a tv camera and finer view of the morning for decisions, for example. Ironman correspondent is pamela brown, so she is ready to go in front of the cameras out there with Pete Williams and dan crawford friends ebs. You wrote a piece recently about how much you agree in advance of some of the term decisions. I suspect im not alone and the Wire Services have flown on a. The moment the decision provides our readers want to know what just happened. Its much easier to do this if there are three or four possible outcomes to write each story in advance and to post that immediately, in supplement it almost immediately with a vote count which is in quotations and then fairly soon having read the damn thing, with actual analysis and the sense of the context and consequences. But i guess it comes as a surprise that the standard journalistic device of writing socalled be matter ahead of time, which it is an uncontroversial background of thats going to work in every story. And delete that gives readers the bottom line. Is something your not doing between 1 10 0510 15 to try to get as red as you can. I have to thank my colleagues are in the same boat on this. Absolutely. Ive done this for a while so i remember the good old days when you could actually read the opinion, listen to the justices speak, talk to a few lawyers and have launched. And call my desk and say heres the lead, his love going to write for tomorrows paper. Now i think weve got would you say, 30, 45 seconds . I feel like its about 15 seconds to 45 seconds ive got to decide. They start reading, pass it on. Speed people run to their little cubicles. I walk. But it is true people go racing out of the room and you can get bowled over by them. But a look at the opinion, count the votes, look who dissented, make sure its very tense, right . Yeah, you dont want to race up with, put up the wrong headline. But as adam said we should have two or three different versions of it. I look at quickly, go back to my desk, try one more time and 45 seconds have expired so i say, i thought the affirmative action case would be a 43 decision striking down the texas plan but in a narrow way. Kennedy didnt seem like he wanted to wipe out the affirmative action but we thought, i think we thought it is i nearly wrote the version we ended up using. I had a version that says green card, i dont know, strikes down texas plan, reaffirms affirmative action. I dont think i had a 44 split but i had a version talking about that wasnt the third one, which is to uphold the affirmative action plan. So we had to quickly say Court Upholds affirmative action plan, and i think in about a minute i said go up with that and there were two sentences and then they had, what adam has referred to as the be matter, background and contact. Abigail fischer sued you can invest it sitting there but you dont want to get the headline of the lead role. I always find it interesting, fun challenge. Because we spent a lot of weeks up there with each side nothing, and then, like on the thursday, the last thursday of the term they did, what, affirmative action and immigration. And its kind of an afterthought. By the way, 44 split on immigration. Im just getting that affirmative action story straight out and hand down this one since this is an its 44 on immigration. Thats a huge story. In california that was by far the story everybody was interested in. And its a one sentence 44 split. So do it again, 45 seconds and get that out. And then again on monday we had two more, the abortion and the public corruption case. So it is an unusually, job we spent a lot of time preparing. He spent a lot of time listening to arguments. Ios8 its like being a College Student at final exams with a last week easy to regurgitate everything in the semester. The only thing that is different when i used to say that, now we do it in 45 seconds. It seems like not only do you have to be prepared and go fast, theres very little time for secondguessing. The winter the court did as this year and lester also is to be cases with easy to understand, who won and who lost. The day will come when therell be three votes to demand, and then the desk will be going crazy into not know what the answer is actually have a chance to as what everything was thrown on health care case. Anyone not followin only as cloy shouldve thought this was a case of the congress calls. Robert this is where striking down o on the Commerce Clause anyone said they struck down Health Care Law but there was that second question. I agree with at west point. Weve been lucky recently at least the bottom line of the decision is clear agree with adams point. It takes unit to figure it out but it is very clear. I was concerned because i find myself especially the last week women getting really tired and i try to think of any way that they could rule, i was obsessed with the Abortion Case. They were two provisions out about mogadishu at issue, the admitting privileges and then the Surgical Centers provision. I was very worried the court was going to act differently on the too provisions, and so that prompted me, talk about writing several different ways. It was almost like a game. If one goes out on procedural and one is 44, i spent way too much time on fat. I have to admit because i just want to make sure i was ready in case that happen. We should get paid for the outtakes. I do think some justices have said since scalia said that there was an effort within the court to make things a little more clear perhaps or to compromise in a clear way. I did not. But it did seem as adam said as he wanted the opinions were a little simpler to interpret and quickly, simple to figure out who won and who lost, where sometimes thats really hard. I wonder if any of you have a thought about it . If the differences on the one hand chief Justice Roberts trying hard to get more people lasted into an opinion, and on the other hand, the socalled liberals making a real point of coming together so you can have so many conferences and conferences in the judgment. Almost every year at this time ive asked the question, which is how do you possibly get a headlight out where it says, i couldnt find one this year, so and so i announced the judgment of the court and delivered an opinion parts one and two of which for the corporate justices so and so join in full. Justices so and so joined in other parts. Alito filed an opinion concurring in which thompson joined. Spent and not the case youre talking about heres the reason you want to go upstairs. Because scalia wrote the majority and it was confusing as hell. At the end of his oral announcement by not introducing he goes but you know what . Epa 197 of what it wanted. Thats all you need, thank you. Take that quote, but at the top the story and you will not be wrong. So back to how i started. You have a theory for why there is nothing like that this year. I was hoping to of such a question for you and i couldnt find one. The contraception case was a little like that. The contraception case was unsigned, unanimous, but completely overtake and soda falsely declares that both sides are very close to agreement and well send it back to lower courts to let them finish up the work would nudge them towards because were not really judges, we are like family Court Mediators and we will bring everyone together. Both sides declared victory and thats a fairly, i forget what the headline was picked probably wasnt wrong but probably wasnt i do it because we dont know what it all means. I thought this was a is the term, i read a number of decision where its not hard to be a Supreme Court justice. I could get seven of you and me, we could be an eight member court. His shaggy do it. He read the briefs on one side makes a really good arguments. Did you read the briefs on the other side and they make some really goo good arguments. Said they would draft an opinion that says the petitioners make some really good arguments and if the law goes too far that would be a mistake so we dont want them to go that way. On the other hand, and a good argument for not every minor violation is a violation of law, and we now vacate the lower courts, based on this opinion. They had a lot of those cases down with they sort of said we dont entirely agree this would bet. We cant decide this case because thats a really close call. We will set about to let the lower court trod again. There are a lot of these opinions that didnt decide the issue in the case, and they just send it back and thats how they agreed to resolve the cases. I think the contraceptive case, i dont ever seen anything like it. It was like here, you figure it out. The parties. Its usually the courts job to figure it out, and they just said this is a mess, you can straighten it out, you are not that far from each other, you do it. Ive just never seen anything like it. It is true that this term as in previous terms the court for murder liberal wing is quite united. If the liberals want to block any move to the right they can but if they can pick up a vote from kennedy or the chief or both then they can issue a little decision. So that does change the dynamics of it. I was interested in the Abortion Case because ginsburg at oral arguments i thought really florida was very interesting in oral arguments. She played a big role from beginning to end, walked, sort of guided oral arguments. And then, of course, when the opinion came down, she didnt write. But she did write separately which she had not done the year before in the gay marriage case, for example, and she puts up with something that she mentioned in speeches a lot, which is the impasse of those laws which she felt on poor women, without access to cover. I am half french and she threw in the [speaking french] which was a very short opinion and shes basically saying that the women, you know, for lack of a better alternative, if abortion, if they didnt have access, they might resort to clinics that might be unsafe. And i thought it was interesting that she did choose to write separately to make the point that she had made before, and soda break although the from the discipline. I suspect you might like to the assignment to the senior Justice Kennedy gets to make you some and he gave to breyer, not ginsburg. I bet ginsburg would have loved to have had that decision. Spent so i think all of you, im not sure if tony is in this category, head of the beads before he became a Supreme Court reporter, nonlegal beats. How is coming to Supreme Court the same and how is it different from covering other beats . Tony, were you in that category speak with a long, long time ago i covered city hall in glasgow star massachusetts and the courts in new jersey. But the Supreme Court is just a unique beat. You get used to almost never talking to the people you cover, which is pretty rare in other beats. And editors would always say can you call up, call of justice it and asking about the red sox . Hes a big red sox fan. This was at usa today. I said i will give it a try and i got a note back from Justice Souter say on matters as controversial as this i must remain silent. On the red sox they wouldnt talk to me. Thats one thing that took a lot of getting used to. Did you ever get to talk to the justices . We do have our occasional meetings with them. There are social events at the court, but it doesnt happen very often, not often at all. I covered education for a number of years before i started. I must say the difficulty of writing about education is everything is mushy. Almost all the language, all the terms are mushy. I found it very hard to pin people down to what does that actually mean wax i like it when i started. As you said i kept doing it for a long time. I like the fact people in the law business want to get to the bottom, what does that really mean wha . Would you explain that to us . One of the great things about the law, they deal with a lot of, when i was cutting education, for example, what did the word segregation and desegregation mean . They are hugely significant. Does it mean stopped segregating students or did it really mean he got to integrate your city schools by affirmatively desegregating . It was hard to write about things in the education business because there just wasnt the same level of precision and focus. Ive always been a fan of, i like him in the lobby people are much more clear and specific when theyre arguing some point. Try to be as clear as they can be. Ive only covered the law but before i covered the court unless the National Legal reporter for the times in new york. And a job in the way was much more satisfying because you get to hunt around can find stories no one else is writing about, traveled the country, pry open a window on some big issue that hasnt been touched on, tell cool stories. And then you come to washington and your writing the same story everybody else is writing. The journalistic impulse of course is to do something distinctive, yet the opposite is the scoop. Its a wonderful press corps. Its been the highlight of moving to washington, a nice collegial, smart, fun press corps that it is. Many, many days we are writing the same damn story. You put them sidebyside and to look the same and have the same quote in the third paragraph. Theres frustration in fact you dont get to choose your own stories. Or almost never. Youre basically doing the stories that night old people who are in a sense your editors assigned to you. They just happen to wear robes. One of the most difficult things for me especially with the end of the term is you are carrying around in your head four or five cases and they havent decided it, and the court doesnt tell you in advance which opinions theyre going to release. You have to sort of cross threading ahead and keep them straight and sort of, that is the challenge for me. But another thing thats not true in other beats is when youre just talking about what we do, like nominations aside, there are no leaks. I think when you cover other beats you are always worried that someone is going to one of your competitors is going to get a leak. And here i think that maybe happened, it happened twice i think with tim obrien of something, ages ago. But for the most part every 30 years. You are not worried about the leak which my colleagues who cover the white house and the hill, they are. You know, thats a concern. Dont you think this is one of those classic explainer beats . I think theyre quite a few of them. If you cover science, for example, or medicine, a lot of what i think could want in a medical writer if somebody who understands medical Research Well enough to write a story that explains this is a significant advance for this reason why this is a questionable. I really think the job we do, Something Like 90 of it is really explaining the court said this, they set up for this reason, the dissenters said it was mistake. Trying to get some sense of the significance of what they decided. So it is a frustrating be, as adam and others have alluded to. If you want to dispute or breaking news you are in the wrong job. But i do think its a worthwhile endeavor to basically try to explain the law and explain what the court is doing. On that note i have a question specifically for you, david, that he got from scotusblog. The day after the macdonald opinion came down the last day of the term that was a couple of people from the National Association of criminal defense lawyers who at a symposium piece on scotusblog and they said in macdonald the Supreme Court of the biggest leap rejected a government effort to convert to federal crimes conduct not prohibited by the federal bribery and corruption statute. Nevertheless, many in the media led with headlines along the lines of quote Supreme Court next prosecuting corruption more difficult and the decision was something other than the unanimous opinion vacating the conviction on federal bribery corruption charge. Charges to have ushered in Supreme Court rejects prosecution theory that converts traditional constituent services into federal crime. So i went back and looked, and her story on the l. A. Times, the morning after the decision was Supreme Court makes it hard to prosecute officials for taking bribes. They were thinking about you. I dont how much control you have over the headline writers at the l. A. Times, but do you think these guys from the criminal Defense Association had a good point . How did you decide how to i thought it would be a good headline in the aclu newsletter. No, i did think that this was a case that would make it harder to prosecute corruption. I quoted somebody, owl sure taught at the university of chicago, said, you know, if i told you that i gave secretly gave the president s chief of staff 1 million to get my mikes liking for 50 minute meeting with the president to advocate some product, and you about that, i think every person that i know would think wombat, that was bribery, corruption wow. They took a Million Dollars to get this guy on the counter so he could make his pitch to the president big only problem is eight people in the country dont think its a crime. They all sit on the Supreme Court. You know the facts of the mcdonnell case, dont you . This is a situation where the guy, this guy, Johnny Williams has a private plane. He takes the gun on a Cross Country trip on a private plane and basically says i need your help with this dietary supplement made out of tobacco. He gives his wife of 22,000 shopping trip. He gets a rolex watch, a series of papers including every so often because the princess i need a 50,000 quote alone. By the way is not alone if its money have to pay back. Right kind of loan. Exactly. All secret and the governor then has the meetings at the Governors Mansion to try to get the staff interested in this dietary supplement the thing is that the dietary supplement was useless and other people were interested, but he tried. So he gets prosecuted for corruption, convicted upheld and the appeals of said this is just routine courtesies. Ive lived in virginia for a lot of years. I didnt know this. In other words, if i had, you know, a book i want to go i could call up the cover and said how about having a product launch, at a mansion, you know, a luncheon at the Governors Mansion . The Supreme Court said that because the jury can its unclear whether this is a decision where the liberals signed on, bette better dream structure ca to make it clear to some specific favor sought for all this money, or whether you can never have a bribe unless the government actually gives you the contract. Im not sure what it is but anyway, i thought this would make it a lot harder to prosecute corruption. I think most of the people who prosecute public corruption said just the same thing the criminal defense lawyers i think you dont agree. I completely agree and i think the two kinds of naivete. One is the notion that the court wouldve taken this case as error correction only, not to announce a legal principle. Face of the road as though they were announcing a legal principle. The second is the suggestion somehow this prosecution was some rogue thing happening in virginia without the Justice Department but if you went to the argument, the Justice Department thought this was the correct interpretation of the law. So in addition to covering the important decisions of the end of the term, most of you, maybe all of you do sort of a round up more general piece about the court. Both adam and david have a recent article i noticed about the court is turning to the left. So ive question for both of them and tony and ariane can chime in. Adam, at times ran a chart on the front page choice most justices moving to the left over the last 30 years. At least i think i saw on the front page speak a little more public and then you suggest, but yes. Since its a mix of cases is different every term, in some cases get to the court only because there is the perception recently that the court may move right, in the case of the affirmative action case, how much can the statistics really show . Are they really showed the court moving to the left or are they really reflecting what cases got to the court . I think the chart you are going to shows what individual justices are out of the king would dispute with the Political Science data shows, which is that thomas was it is the most conservative justice, that the three women are almost in the same place ideologically, that breyer is a little bit to the right, that candidate is in the middle of in the middle and achieve and alito who starred in the same place ideologically have over the last 11 trips drifted apart. Scalia to the right, robert to the left. Lawyers are wary of data. Lawyers like to argue that individual cases and ho how comx this weird climate, doesnt that prove this is not an ideological court . If you look at the numbers that large enough magnitude, patterns emerge and those patterns as it happens are completely consistent with our tuitions. Its truth in the last couple of turns the court has but a very formation marjah but nonetheless issued more liberal decisions that any court since the warren court. That seems noteworthy. That also seems accurate. Thats completely consistent with my impressionistic intuition about the term but it doesnt matter to date it is a because the numbers are large enough, they tell us something. We started off talking about Justice Scalia. It is true that had Justice Scalia delivered, this look and feel like a very different term. Because on february 9, the court issued sort of a surprise order on a 54 vote to block president obamas Climate Change policy from put into effect. Thats going to put on hold for a couple of years it was a real surprise. They almost never do a thing like tha that before, that the e is being litigated below. Soy big decision blocking the pressures Climate Change plan. Scalia died four days later, that had he lived the court wouldve had a 5 4 decision throwing out the agency fees for Public Employees unions. It wouldve been a 54 decision to reject the president S Immigration order, probably in a fairly broad opinion that only some of the language would have been a rebuke to the president. And then the two cases where, tilt it the other way because of kennedy on affirmative action and abortion. The affirmative action would have deadlocked. 44. Okay. Okay. So youre threefold although across accepting abortion. It looks like that wouldve been 54 not 53 in favor of the liberal vote. Industry things, the cases could tip you if you very much of the term. But on this term like the last, last year we had a gay marriage decision at the very end, a huge decision, and another decision a point the President Health care plan. This view the two Big Decisions on affirmative action and abortion, those are fairly big, liberal victories because kennedy tilted to the left on it. Talk about those of someone. Those are cases that turned out depend a lot on the facts and evidence. I think in the end kennedy was convinced that the abortion, the texas abortion law could not be defended as a health regulation. And that the texas affirmative action plan was a narrowly tailored plan, which he assumed to this okay before. At the end of the term you have, what you say about a trumpet is little of this and a little of that . I think somebody could argue the court has not shifted decisively left but when you go through a couple terms when the big ones come out, the left side come it seems like a more liberal court. Thinking to what we are looking at, it sure look like speed is also the contraception case comes down differently. If scalia lives. It look like this would be the Empire Strikes back. I do a whole bunch of reasons why a court that looked like come a time that looked like it was going right she is heavily to the left with scalias death. It seems to be white was, a term that didnt go to the right, sort of what you were saying. Friedrichs never wouldve been except i dont thought they couldnt overrule aboud so they didnt succeed. But they did make the law anymore liberal candidate in for 40 to the texas Abortion Case never wouldve been except people in texas and other states thought they could push back against the right to reproductive choice and they didnt succeed. But it was the Abortion Rights Group that brought the case to the court spent and Texas Legislature passed a statute thought they could get away with it spent every time someone on the right does something that is devious and every time someone left a something, thats doing gods work spent the right to abortion get more protection than it has before the statute was passed . I think the answer is no. To somebody but i think, and i think we sort of talked around it but i wonder what peoples theory is on why Justice Kennedy moved on affirmative action and on abortion rights. I mean, was this some sort of centrifugal force or the balance shifted to the left because scalia died and he had to go there. What do you think it was . You you have a bit of theory about this about the justices who up in california our paper did make a little more of the california angle that i wanted to but i did mention that there are actually two california natives on the court, breyer grew up in san francisco, went to stanfordand hartford and kennedy groping san sacramento. The thing i thought was, the long story in the short story here, over a lot of years i talked to law professors and they often say who was your boss readily with around the building orwhatever . And i was released price how many times people say regarding kennedy and breyer, they seemed to be very friendly. They spent a lot of time talking and i never figured that out because they were always on opposite sides but breyer is a guy who worked for ted kennedy in the senate before he became a judge, he likes to talk about those years and one of the things he always talked about with kennedy is how even though kennedy is known as this sort of liberal lion, kennedy really liked the idea ofbeing able to work with republicans. He defined a republican there was really interested in school, this or that and he find a republican was interested in some Healthcare Program area he loved being able tofind a republican that they agreed on something and find a way to do some legislation. And i always thought breyer, when he tells those stories he doesnt say this but thats something he values very much and he always talked about how he was in morning after Sandra Oconnor left the court because oconnor was somebody who was not, definitely not sort of a rigid ideologue who cared about the doctrines area he was somebody who cared about the fact in the middle and you wouldnt know whether she was going to tilt left or tilt right, it sort of depended on this particular case and breyer love to be able to talk with her because he thought she was reasonable and is done alittle that with kennedy , that kennedy has a more on these areas like abortion and affirmative action, kennedy does have a middle, a little bit of a middle position. Conservatives thought scalia, thomas, any use of race was unconstitutional. That was not kennedys view. He thought diversity was a compelling interest but it had to be a narrow target so the question is could you convince him that the texas plan is narrowly tailored or is there much of a thumb on the scale . Anyway, i think he and breyer could talk these things out and he ended up signing breyer, the Abortion Case and i think adam mentioned earlier, i think its something rude in spirit would love to have done, little would love to have written but he knew breyer would write one of these very matteroffact opinions, no rhetoric. Hed say the evidence shows these regulations really are not justified. The cost is very high, the benefits very low, therefore texas loses. Thats exactly the kind of opinion that kennedy grid could agree with. He wouldnt like an opinion that really slammed the texas legislator for sham legislation for example lets not overlook the fact that here are two things we knew about kennedy before these decisions came down he had never in his time of the court voted to uphold any affirmative Action Program area he had voted to uphold 20 abortion restrictions and voted against only one so this is someone where the free decision data really suggests one set of outcomes and we get a big surprise going the other way. And alito in the affirmative action case called him on it. And to the extent that there was a surprise particularly after oral argument with kennedy, at one point i think he said well, because you remember this is the second time we had gotten the affirmative action case and he didnt seem to like it. He wouldnt vote with certainty. He said really, this is the same case or something so i think alito really said at the top of this dissent, what happened or something happened. Something like something strange is going on here. Yes and i thought that was very interesting that alito call that and called it early in that dissent. Another thing that was strange about alito for an oral dissent i think its probably the first oral dissent that ever focused on issues of res judicata and severability clauses. It suggested, thomas did defend the law on the texas abortion restrictions on marriage, alito joined by the chief really only procedure. They seem to be prepared to defend this one on the merits. How do you cover that . Do you say alito mounted a vigorous oral defense focusing on res judicata . I did not say the words res judicata. My editor would faint. That stuck in my story but usa today, when i covered the Supreme Court, people called me the reporter in charge of latin phrases so you have to recommend sometime. So how do you all cover alitos oral dissent or his defense in general in that case if there really was almostentirely procedural . Briefly. I think i gave it on sentence. Its hard to write about the dissent in a big case like that because of theres a lot of things to say but if you spend all your time saying this case was procedurally screwed up and we shouldnt have decided it, how many people want to read about that that they have to have a big decision . Although Justice Alito had the only two oral dissent this term, Justice Thomas had 18 dissents. More than one third of the total number of dissents written by all the justices and he had 39 side opinions which is more than Justice Kennedy, Justice Kagan and the chief combined. Why do you think he is writing so much, is he trying to make up for never asking a question from the bench and how much do his separate opinions or separate opinions in general affect your reporting . I think when you look at the case this term, when we were all, i was downstairs. I wasnt upstairs when he asked the question for the first time in 10 years. That was the visine case and i think whats interesting is that he hadnt asked the question at oral arguments but he reads his opinions with his booming baritone voice. Hes very, when he gives public appearances , he talks a lot. He did a appearance with judge sykes from the Federalist Society a couple years ago. He is not shy to talk what he has given various reasons why he doesnt and one of them is that he feels like sometimes the justices are doing too much talking on the bench and in that particular case, it came soon after the death of Justice Scalia and the court, the court had declined to take up the Second Amendment issue in the case. But it meant something to him and so that triggered him to ask this series of questions, 10 questions and maybe you know, hes true to his word. Scalia was on the bench, scalia probably would have asked that line of questioning. He was about to sit down early so he wasnt wasting anyones time. Right and then i felt like that decision came down last day and i feel like i havent given enough time to his dissent in that case but i thought it was very interesting because just because he doesnt ask questions in oral arguments, theres this notion that hes shy or you never hear him speak, you can hear him speak and i thought that case was interesting and him speaking to his word,ill ask a question when i think the question needs to be asked that no one else is asking. Thomas and i always think of thomas like sonja sotomayor. Different justices view the job very differently. And weve had a couple on the right, Justice Thomas and Justice Scalia and on the left, id say sotomayor and to a lesser extent ruth ginsburg. Adams got a good piece in his paper today about Justice Sotomayor has written all these dissents on the criminal Justice System, cheese into a different audience and trying to say look, theres a real problem in the criminal Justice System but shes writing those dissents frequently alone. But shes speaking to an audience out there and Justice Thomas has always wanted to do that. From the time he arrived, he was always had a sense of his own sort of contrary and view. Hes sort of a court of one. Hes always had a distinctive view on all sorts of things and he loves to sort of write one of those opinions that says all my colleagues are wrong and theyve been wrong for 60 years. He goes back and says we got to go back and interpret this as we did during the 1920s. Congress means taking goods across state lines, it doesnt regulating all these businesses so thomas always had that instinct to say this entire area of the law is wrong and heres how it should be rethought. Thats really what he likes to do. Theres quite a few like breyer, kagan, i think john roberts who are much more focused on in the middle, how can we decide these cases question mark but they really are justices on both wings that are speaking to a larger audience to say you know, our court is completely off base in this whole area of the law. I saw law professor, it might have been John Blackman right words search through the thomas dissent in an appropriate case. If you run that set of words, it will pull up all the things he would like to see overruled. In an appropriate case we should reexamine those so he would take out half the body of the american constitutional law. I noticed at least three cases like that from thomas this term. In the whole Womens Health and his separate, he said this whole idea of Different Levels of scrutiny , media scrutiny, rational basis, it doesnt make any sense. Caroline fechner, that may not be so crazy but it certainly is, youve been doing it wrong since the 1930s. And in why scene he thought this lifetime position on lifetime ban on possession of firearms by people convicted of certain crimes was patently unconstitutional in violation of the Second Amendment and in heaven well, i dont know how to pronounce it against added, which has to do with how a state decides who to count when its doing reapportionment, setting aside the legislative districts, he said the court has never provided a basis for the one person one vote principle. Lets just go back to you know, some counties get more votes than other counties. These are certainly interesting ideas, do they rise to the level of being your reporting on either when you report on a particular case or in a more general way do you talk about these issues . Its definitely worth reporting. Justice thomas is a justice who doesnt believe in starting decisively, speaking around latin phrases but he just thinks that you know, relying on precedent blindly is a dumb idea and hes willing to upset the apple cart quite often. Sometimes it puts him way outside the mainstream of legal thinking but its certainly deserves coverage. Certainly an important fact to know about one of the nine justices. I think is more interesting as a legalthinker than as a judge. Sometimes when he actually has to decide and judge a case, we had this case about the juries and the evidence coming forward that the prosecutor had sort of colorcoded the jurors to try to, so to speak. Each potential juror and it was unquestionably clear that they were trying to eliminate all blacks from the jury. And so when this came out, the court had no problem, i guess it was a 71 decision saying if we are serious about not allowing prosecutors use race to, this is a classic example. John roberts said it was nonsense to suggest there were legitimate reasons for this but Justice Thomas writes a solo dissent saying im not convinced that the fact that they struck each of these black jurors or seemingly transparent phony reasons amounts to Racial Discrimination and i think i end up writing about some of his dissents that i think are hard to think that that was the right call. So we have a little bit of time left. Lets talk a little bit about the future area in my advertisement for this panel that went out by email to bar members, i said will the senator hold a meeting on doug garlands nomination if Hillary Clinton wins in november . If dominant donald trump is elected will he really nominate judge judy to the Supreme Court . More seriously do you have anythoughts about what the future portends . Well , i dont cover the senate so i cant that. I will say though that i have talked to conservative lawyers and conservative activists who have said theres got to be a vote in delaying that session. Thats what they told me on background, some of them. Again, i dont cover that branch so i dont know how they do that. I dontknow anything about the Senate Either and this is a big assumption but assuming they are rational actors , if the republicans know theyre going to face Hillary Clinton as president and they have the opportunity to confirm a moderate 63yearold, they would be insane not to. I agree with that for the same reason. Its just a guess but Merrick Garland, Merrick Garland is the kind of judge that all the republicans would think were this not sort of a partisan situation, they think this is the best were going to get from the Obama Administration. This guy the very fine judge, a very good person. Hes not as liberal as some almost anybody in the Hillary Clinton i think would pick so i would think as adam said that if mrs. Clinton were to be elected in november, i would think that some republicans think maybe its a better idea to go ahead and confirm Merrick Garland. Another change, a little less highprofile is solicitor general really retired at the end of june after five jews that position. And his chief deputy, in thursday morning would be acting as the least until next spring i suppose. You think thats going to make any difference to how that office operates or what those are as a court . I dont think so. I think they worked together for quite a while and don really ran a very tight ship and you know, their innocence coasting. The docket for the next term is not that huge. There are that many big issues to face so they will just sort of muddle through through the end of the Obama Administration and somebody else will come in. The thing about borelli and maybe, i was interested that more than once the justices allowed the really at the end to make sort of a closing statementand they didnt interrupt him. I think they had a lot of , they respect good lawyers because that makes their job a lot easier and they like people who come prepared and i always thought they gave him a lot of difference at the end to sort of state his case without interruption and i think maybe more than one of them probably wasnt pleased with the way he was treated with the health care and particularly as we said earlier with that ad that went out. Gave a bunch of interviews as he was leaving and he made the point that it was a selfconscious decision in most cases to keep it understated and businesslike and he thought that and i think hes right about that. That earned him the opportunity occasionally to move the dial to something a little more rhetorical, a little more emotional and for something that mattered to him and as area was saying, not every advocate would be given the deference but i think he earned that deference by five years of really outstanding service. Weve got about 10 minutes to go if people have questions. Marcia, how should we handle this . Raise their hands and mike will come to them . I see someone fetching mike so if you have a question you can let yourself be known and there you go, theres one on side. Hi, often times it seems often, two very important decisions will be released on the same day area canceled this year, the whole health and of walking decision came down the same day. I have two questions. One, do you think that theres a strategy on the courts in timing the release of the decision to see that one of the decisions doesnt get as much coverageas the other and the second question is , you as a reporter, do you advocate with your editor to make sure that this quote, lesser decision in this case walking gets the coverage that it deserves . As i said with the one in decision on, i thought that was interesting and i absolutely did write it. I didnt write it quickly as i got the otherones out. So i absolutely think thats an important thing to do and i think ill circle back to it. Particularly that dissent sometime and as far as, i think the justices data opinions are released when theyre ready. I was very pleased last term that we didnt get to big ones in one day because that makes life complicated. For our team, that is busy trying to figure out what to say and this term, when we got affirmative action and immigration, at least the immigration was a 44 theres nothing to read at least. We didnt suddenly have to go through but i remember just for the drama, youre in that press room and they announce it in one room and you come out with the affirmativeaction and your reading, reading, working on it and then did we get the 44 in Dollar General . So we go in and theres a 44 in Dollar General and you come back and they are saying 4 to 4 and summary says thats not it and you raise back in for the four core so its a busy day. But i absolutely cry and our team at cnn two, we didnt want to lose that decision so it was important you have high school final type nightmares during the last week of the term . Oh gosh, i came about my pencil, i missed this is decision. Absolutely. Those last two weeks for me are difficult particularly this term because not only do you want to sort of know every way the court could rule so youre not surprised, thats a tough one suddenly if youre surprised but then we have the added burden of the potential of a 44 or the potential for an order for the argument and maybe you know theres not a High Percentage of Something Like this happening but you have to be prepared for it so its a little nerve making the last couple of weeks someone asked if there was a strategy, i dont appreciate it if there is but its hard to know, this was a pretty bad year on that score. Some years they done better about speaking them out at the end but just say for myself, i find that there are a certain number of cases that i will say like b level interest and was in, the gun case was certainly in that category. What a slow day, i would love to write about that case. Its an interesting small spin on what they said before that and everyone who is guilty of a misdemeanor crime of Domestic Violence, no gun. That is a question about what he pleads guilty and recklessness is part of it . So given the change in the law in a big way but if you put the words guns and Domestic Violence in the same story, a lot of people are going to read it and i would read it, its an interesting subject. On the other hand, if the court does it the same they decide and affirmative action and immigration case, i didnt write about it. I think we put something in our papers about it but those were two big stories i had to devote a lot of time to. There was another case pending about the drunken drivers and breathalyzer tests and blood test, i thought that the great subject because everybody can immediately understand, does the Police Officer need a search warrant before acquiring somebody take a breathalyzer . The answer was no six 22 but how about a blood test . It was different for a blood test. Very interesting subject but again, i sort of took the view that i can only write to big stories and do them in a hes way. If i do a third one, i can type fast but theres a lot of potential to screw up anything so i thought im going to do to big stories and not the third so when you get one of these years where theres not a lot of decisions, its really irritating and frustrating that they all get bunched up on two days at the end. Any other questions . Yes, in the middle. To what extent do you think the justices, particularly Justice Kennedy are influenced by Public Opinion . X. Justice ginsburg says and i think its a nice breeze and this is true to all of them that they are not influenced by the weather of Public Opinion but there influenced by the general climate. Think about samesex marriage. 10, 11 years ago when the Massachusetts Supreme Judicial Court first announced there was such a right in massachusetts, it was an earthquake and nobody on that day would have thought that a decade later the Supreme Court would announce that to the federal constitutional right. Public opinion moves so fast and theres been so much activism and litigation that it changed the climate and it allowed people including Justice Kennedy who wrote to come have a different view of the world and what the constitution requires so i dont think you care about momentary glimpses of inconvenience but i do think they care in a general way. They live in the same world we do and they look around and come to conclusions. I agree. Kennedy would be very much aware of the fact that if they were ruling that there is a constitutional right to gay marriage, is that changing the law in 10 or 12 states or 45 states . Remember, by the time they finally got around to ruling on that, two thirds, three quarters of the states through legislation or reports, gay marriage was already legal so they were making a National Announcement to say this is on the national rule, International Constitutional right area i think just like the Public Opinion switch, a series of states laws have switched and so they were not you know, sweeping aside 45 laws in 50 states. This is a little harder to prove but i have to think that one reason they keep turning down Second Amendment cases is because the climate on guns is so fraught that they dont want to be issuing some decision the morning after a mass shooting. We have time for one more, another hand question mark you mentioned the liberal block of justices and basic together. At the upcoming election if the Court Continues to move to the left, you think we will see some difference of opinion, some breaking out about block . I think if we get ajustice garland, theyre going to be very tightly bunched. On the left. One question that id love to hear other people, i assume there was a solid five liberal justice majority on the court, with a do something to citizens united, with they do something had a . The question now goes back to a point was making that the left is mostly blocked the movement to the right. One of the left actually has five voices to the left , which pass to the left mighty take and thats an interesting question to think about Going Forward. I sure agreement down the road we dont know whether we will see this but down the road if anybody splits on the left also because Justice Sotomayor or Something Else will say we ought to go further than some of the liberal justices will say im not ready to go that far so you will see a split of concurring opinions, if thats directly said they been blocking things they think the conservatives want to change the law in a big way and their blocking things but to be sure, Justice Sotomayor has a different view of things then say Justice Breyer does. Is one 58, im sure our friends at adam liptak 23 will be happy if we wrap up in an hour and a half and we will see you next year i hope you. [applause] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] fbi director james comey says the fbi will not recommend criminal charges in its investigation into Hillary Clintons use of a private email server while secretary of state. The Justice Department has been looking into whether anyone mishandled classified information that flowed through secretary clintons email server. Director comey thinks the secretary of states actions did not rise to the level of criminal. Although we did not find clear evidence that secretary clinton or her colleagues intended to violate laws governing classified information, there is evidence that they were extremely careless in their handling of highly sensitive classified information. For example, seven email chains concern matters classified at topsecret Access Program at the time they were sent and received. Those involved secretary clinton sending emails about those matters and receiving emails about those same matters. This concludes any reasonable person in secretary clintons position or the position of those with whom she was corresponding about those matters should have known and unclassified system was no place for that conversation. In addition to is highly Sensitive Information we also found information that was classified in secret by the Us Intelligence community at the time it was discussed in email. None of these emails did have been on any kind of unclassified system but their presence is especially concerning because all these emails were housed on unclassified personal servers not even supported by fulltime security staff like those found that agencies and department of the United States government even with a commercial email service like gmail. It is important to Say Something about the marking of classified information. Only a very small number of emails containing classified information indicated the presence of classified information. Even if information is not marked classified in an email, participants who know or should know that the subject matter that is classified, an obligation to protect it. Although not the focus of the investigation we developed evidence the Security Culture of the state department in general and with respect to the use of unclassified systems in particular, generally lacking in the kind of care for classified information that is found elsewhere in the us government. As far as computer intrusion by hostile actors, and secretary clintons personal email domain, various configurations in 2009 were hacked successfully. Given the nature of the system and the actors involved, we assess we will be unlikely to see such direct evidence. We do assess hostile actors gained access to the private commercial email accounts of people with whom secretary clinton was in regular contact personally. We also assess secretary clintons use of a personal email domain with large number of people known and readily apparent. She also used her personal email extensively while outside the United States, including sending and receiving workrelated emails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to secretary clintons personal email account. Republican president ial candidate donald trump tweeted out his reaction to todays announcement regarding mrs. Clintons investigation, quote, fbi director said crooked hillary compromised our national security. No charges. Wow hashtag rigged system. The system is rigged, general David Petraeus got in trouble for far less. Very very unfair. As usual bad judgment. President obama is on the campaign trail with democratic president ial candidate Hillary Clinton. This is president obamas First Campaign appearance with mrs. Clinton. They are holding a rally in charlotte, North Carolina at 3 00 eastern. At 5 00 eastern the House Rules Committee meets to decide what if any amendments will be allowed tomorrow when the house considers gun legislation. The bill will delay gun sales to people in the terrorism watchlist. You can see live coverage of the rules Committee Meeting on cspan2. The Senate Returns for legislative work tomorrow on capitol hill, they will vote on a judicial nominee and may consider bill dealing with illegal immigration. Live Senate Coverage is here on cspan2. Cspan will have live coverage of the house debates the bill, preventing suspected terrorists from buying guns and denying passports to those who support terrorist organizations. Our road to the white house coverage continues with Democratic National Committee Platform committee taking place live in orlando friday, july 8th starting at 3 00 pm eastern and continuing saturday, july 9th at 9 am eastern. Committee members will debate and vote on the Democratic Party platform for this years elections. Live coverage on cspan2, cspan radio and cspan. Org. The hardfought 2016 primary season is over with historic conventions to follow this summer. Colorado. Florida. Texas. Ohio. Watch cspan as delegates consider the nomination, the first ever for a Major Political party in the first nonpolitician in several decades. Watch live on cspan. Listen on the cspan radio apps or get video on demand cspan. Org. You have a front row seat, both conventions on cspan beginning monday, july 18th. Former agriculture secretary clayton utile says there are consequences that will not benefit the us with trading partners was the former agriculture secretary and us trade representative came during a Panel Discussion with other trade experts on the Transpacific Partnership agreement at the cato institute. This is about an hour and 10 minutes. [inaudible conversations] senior fellow and trade policy. Earlier panel dealt with the substance of tpp. Three major obstacle stand in the way of congressional approval, Financial Services allows government to require banking data to be restored. The length of data protection, biological, pharmaceutical, and the division from the i sds requirement. My first reaction upon seeing tpp was they must have made the unusual political calculation that it would be a good thing to take a sharp stick and poke senator mcconnell and senator hatch. Hatch because of the biologics, and the tobacco it was a surprising way to smooth the way on the hill. Certainly the provisions as they came out did nothing to strengthen republican support for the agreement. This problem stems from the administrations decision to wrap up negotiations last october through the negotiations were really finished. Financial services pitted the United States against the United States, ustr versus treasury. Ustr place high priority on tpp, and localization requirements for any sector. The treasury wished to maintain ability for Bank Regulatory agencies to have us access to data and the treasury won that dispute and it was left in the uncomfortable position of coming back with an agreement that accomplished dataflow and not others. Subsequently, treasury and regulatory agencies have thought about this issue and as ambassador froman mentioned, there is a paradigm Going Forward that address these concerns, still regulating the data on the other side of the border. Frankly it would have been nice if the administration had done that homework in advance. The biological pharmaceutical, they have received 12 years of data exclusivity in the United States under statute since 2010. The agreement provides 5 to 8 years, i wont go into all the details of how that might sort out. It is understandable why other countries might prefer to have the United States bear most of the cost for biologics, research and development and regulatory approval. And if they can get the generic versions more quickly, that looks good to them but of course the us industry very much once the broader Global Community to help fund r d costs. This issue is very important to senator hatch. He is a Copyright Holder himself and feel strongly about intellectual property issues. The Obama Administration has a credibility problem regarding biologics. Its annual budget submissions have repeatedly propose shortening the 12 year timeframe to 7. This position was reiterated most recently in february 2016 when their Budget Proposal for 2017 once again shortened it to 7 years so it might be challenging for the pharmaceutical industry to think ustr negotiators have been working really hard to get 12 years. Than the tobacco will be addressed in more detail by geir ulle but we have written that it isnt an essential component of the trade agreement because fundamentally it does nothing to liberalize trade. We could see through the past year or more that there was widespread opposition among various nongovernmental organizations and this was giving a hint that provision might complicate passage of tpp. What is clear, by turning around and excluding tobacco, the administration has lost several republican votes in congress and appears to have gained a total of none. My big concern is the precedent it sets for other products in future trade negotiations that are politically unpopular. People in the European Union might wish to do is genetically modified organisms. Why not discriminate against them . That is enough of my background comments. Allow me now to introduce panelists today in alphabetical order. Philip levy is senior fellow at the Chicago Council on global affairs. I am envious of philip because he has the luxury of working on trade policy issues 700 miles outside the capital beltway and since i used to do the same thing from minneapolis, i know how much better the world looks when you get away from the daytoday machinations in washington. Outside the beltway, and the resident scholar, and the council of economic advisers for george w. Bush and the department of state, and secretary rice. And the university of virginia, columbia and yale. He holds undergraduate degrees and economics from the university of michigan, and stanford. Geir ulle is an international trailer working with Kt International at Global Headquarters in geneva. He also has a perspective, perhaps conditioned somewhat by close proximity to the wto. Prior to joining jci, worked for the European Free trade association, supported the negotiation trade agreements and provided technical assistance. Geir ulle holds a law degree from the university of oregon, a beautiful but often somewhat rainy city on the west coast of that country. Clayton yeutter is a Senior Advisor to the law firm hogan levels. He has had an influence on me. I served in several he served in several roles at the usda in the 1970s before i knew him but in the 1980s i was working in the senate and it was not hard to become acquainted, and the Chicago Mercantile Exchange and the agriculture committee, in the process of trying to reauthorize commodity futures trading commission. He had clear views he articulated. The next thing i knew about that, president reagan turned to clayton for help in the trade policy. When he became ambassador in july 1985, it was strong relative to other currencies and us exports were suffering. In front of that doom and gloom which is not all that dissimilar to the situation we have today, claytons message to those seeking protection from imports was basically cheer up, a large volume of imports is not the end of the world. There is a lot of leverage as we talk to other countries about the need to liberalize, open all our markets. He was instrumental in the uruguay round in 1986 and concluded the us, canada, fda or 1988. After concluding the trade picture he shifted to the department of agriculture where he served two years as secretary for president George Hw Bush and moved onto a stint as sheriff of the Republican National committee. I am a bit younger than clayton but have been involved in many of the same issues and i have been much impressed. Given how i tend to follow his tracks, i shouldnt have been surprised that a conversation i had one fall a few years ago, at an oktoberfest barbecue grilling bratwurst in my neighborhood. A new neighbor came up, i was visiting with him and he asked what do you do for a living . Trade policy mostly. You might know my fatherinlaw. And i did. I do have a hard time with claytons influence in economics. All from one of his true loves, the university of nebraska. Two other noteworthy items. One is that he serves as a valued member of the Advisory Board of the trade policy study, the other is that he was honored by the International Trade association with Lifetime Achievement award in 2014. He concluded his acceptance speech with this exhortation, never give up working toward trade, never give up, perhaps none of us will ever completely escape his influence. Mister ambassador. [applause] thank you so very much. That was a wonderful introduction. Thanks to dan for inviting me to come over and participate in this program. I will try to do my part fairly quickly to stay on schedule and not take time away from my colleagues up here. I would like to say two or three things in response to what has been said already and what he was talking about here. First of all, in terms of tpp justifying congressional approval you will discover that my answer is a resounding yes, with more enthusiasm than has been projected by some of the people here this morning. I say that notwithstanding the fact we have two president ial candidates taking the opposite view including one who is the presumed leader of the Republican Party today and all i could say to that is first of all, the candidates are both wrong, dead wrong, and secondly to the members of the press who are here, i wish you would begin to do your job and ask them the questions that have not yet been asked, that is if you dont like the tpp agreement, tell me why. Please explain your position. Just wasnt about tpp you dont like . Do you just want to tear it up without understanding the consequences . The fact of the matter is there have been very few hard questions like that from the press with either candidate and that is most unfortunate. With respect to the cato analysis here, there are a couple items i would have shaded a little differently and maybe dan, you guys are correct and i am wrong, i was a little disappointed in the Market Access provisions. I would not have graded them as high as you did. I would have thought we were lacking in ambition in Market Access, i particularly once the agricultural part of that, we certainly could have done much better with both japan and canada, and the same thing is true in other Market Access. My original demand in that area, leading that negotiating team, would have been a lot higher and more ambitious than it was. But nevertheless, i will always come to the point president reagan made in my 10 years, just as applicable here, derek missed this morning in his emphasis, and that is better moving forward and standing still, better moving forward than moving backwards, and tpp moves market liberalization forward and the way president reagan use to put it is get all you can. At the end of the day remember half a loaf is better than no loaf at all. If you evaluate tpp as half a loaf, most of us probably would, some of us would make it two thirds and someone third but nevertheless that is better than nothing at all. I firmly believe it would be a big mistake to do that. The other point, guys at cato underestimated the value of sanitary provisions in this agreement. It is true in these difficult food safety issues one can take these cases to the wto because it has excellent sanitary provisions we put in, as a matter of fact the insistence of the us, those provisions moved slowly, they are a lot faster than they used to be but nevertheless it is a relatively slow proposition. I dont know how fast it will be in tpp but hopefully faster than the wto and you will see countries using these sps provisions in the tpp rather than going through the wto. Finally two of the quick points and move on. One advantage of tpp that got no mention until the last Panel Discussion, the advantage of being on the inside of a trade agreement rather than the outside. The benefits if you will of preferential treatment. With tpp the us is on the inside, a lot better than being on the outside looking in. We should not underestimate things. Look at the benefits of nafta, which was another agreement people want to throw out now but look what we have done to develop north American Business enterprises. Not us or canada or mexico but north American Business enterprises who have a huge advantage in International Competition over the rest of the world because they are on the inside rather than the outside of nafta. Secondly my other point is us leadership. We havent talked about that a lot today but that is important in the tpp context. Only one country can lead what we call the western world and that is the us, tpp is an opportunity for the us to exercise leadership in asia and these opportunities dont come around very often. We need to take advantage. We have been sitting on our hands for a number of years in terms of demonstrating the ability of the us to lead internationally. We have backed off instead of asserting ourselves and that needs to change and it needs to change badly and we need to get that done. To the politics and i will do it quickly. First of all, if there is to be any chance of getting this done between now and the election which would contribute to the obama legacy or our president s eight years in government, there need to be some tweaks to tpp as absolute necessity. My two colleagues will talk more about the tweaks and i wont to that here in terms of what we might do in pharma provisions and biologics but those have to be resolved. This administration in negotiating tpp insisted on provisions in these areas the troubled a lot of us and troubled too many people in the u. S. Congress for it to be approved in my judgment. Between now and the election. The first imperative to make those changes, i dont know whether the votes would be there if the changes were made. In the absence of fixing those issues and ambassador froman indicated they were working these issues, not sure what that means but they have to work him harder or there is no chance whatsoever this agreement will be approved by congress between now and the election. I think the chances are slim to none, but nevertheless, the administration is part of the president s legacy, they need to get off their derrieres and get these changes done. Assuming we move beyond that the next question is can you get approval of tpp in the lameduck session . That is an interesting question. Because it may depend a lot on the election not only in the president ial race, but the senate and house race between now and then. Normally i would see there would be little chance at all of approving tpp or any other trade agreement in a lameduck session because it is too short. How do you take tough complicated issues in a session that short . Congress had just gone through tough election cycle. They are tired and want to go home and do their Christmas Shopping and spend Christmas Holiday with their family. They dont want to talk about tpp in the post election period. But they might. The reason they might is there may be some shifts in control, not just in the executive branch but the legislative branch as well. Then you have to say irrespective of how those come out whether members of congress and the administration might say is this a good time for a little bipartisanship in order to get a tough issue off our agenda and start the next year fresh . Should we have a clean slate going into 2017 . If that is so, wouldnt it be nice to get this issue off our backs in 2016 . The only opportunity left to do that is in lameduck session. Dont write it off completely because there may be some interesting bipartisan politics that could emerge in a lameduck session and get it done then. If that doesnt happen and you have to say the chances are well over 50 50, nothing will happen after the first of the year and you have a new government. Then what do you do . One of the risks is its goals all the way to 2018 or dies on the bottom. That is because people get tired of waiting and other pico in particular get totally frustrated with the United States and say what kind of leadership is this . You ask us to get approval of our government, the tpp agreement and we have to bite the bullet and havent been all that tasty. You dont want to do that in the us and therefore, you need to suffer the consequences in terms of leadership. I think there will be a lot of that argument made if things spill into 2017 and maybe beyond. It will be difficult for the Incoming Administration which has to put a new government together which means probably a new ustr. Who have considerable amount to gain from in this, and i think they would have to next january, say, look guys, this has got to get done now. Well give you all the support to get the votes in congress to have it happen. So there may be a good chance of getting it done in early 2017 if it spills that far, but that will only happen if the Business Community and the Agriculture Community weigh in in a big way and make it happen. And ill stop right there. [applause] well, thank you. Its a pleasure to be here. And especially to speak after ambassador yeutter, and i find myself in agreement with him on an awful lot of things, including i would like to see the tpp to pass. He gave an excellent description of many of the reasons why this is so important. I might be even more skeptical than him about the prospects for passage, although i agree with all the challenges he identified. I guess i would note that weve had repeated statements in the discussion about the tpp that its really important that it passes. And i agree with that. But thats not a plan for getting it passed. Saying something is vital is not the same as having a strategy. If you want to visualize this, imagine were on one mountain peak, we see another one nearby, and we say we really should be over there. Great, except how do you get there . Theres a deep valley in between, and what do you do . I want to sort of come back to some of the points that the ambassador sketched and say, you know, what are these steps, how would this actually happen and use that to justify why i have somewhat additional skepticism on this. Well, the steps are laid out for us in trade promotion authority. We know sort of how you pass an agreement like this. It starts in the house ways and Means Committee, it then goes to the house floor, then Senate Finance, then the senate floor. If you get everybody approving and you have some protections that in the senate, for example, you no longer need to worry about a filibuster, so if everyone approves, youve got your ratified trade agreement. Its a bit of a challenge to analyze the timing on these things because the tpa lays out often restrictions on the executive more than it does on congress. It does some, it will say heres the sort of maximum time period that the house ways and Means Committee can take to examine this agreement. Weve already blown way past all of those things. The house ways and Means Committee could take up to 45 legislative days. Im not sure we have 45 legislative days left in the year, and thats just the house ways and Means Committee. So, and the other challenge in analyzing any of these things is it is, theres a difference between improject probable improbable and impossible. When it comes to congress, if you have a majority thats eager to do something with some of the protections included in tpa blocking things like filibusters, theres very little limit on what they could do should they get it together. But heres why this is problematic. So one reason we all end up with a focus on the lame duck when we try to imagine scenarios where this would get passed is if you look at, say, the house calendar and its Available Online you see theyre not around that much. That they, they meet until about mid july, and then you start having conventions, and you have elections. They come back, i think, for a little bit in september. And at the moment, are scheduled for two weeks, i believe, later in november. Now, my understanding from people who have worked the legislative side of getting trade agreements passed is if you look over the last decade or so and, say, whats the quickest one of these things has gotten done, theyll point to some less controversial agreements and say that one we managed to do in three and a half weeks. Thats if its uncontroversial. So the house isnt even scheduled to be around that long. Plus, were sort of assuming this would be the major focus of what they do. You may have frequently in a lame duck session theres, say, budgetary issues that people kick down the road that these to be dealt with. Just as there might be a reconsideration of whether you should address a trade agreement if youre looking at an upcoming change, you could have a reconsideration of whether you should put forward, pass and confirm a Supreme Court nominee depending on what happens. But thats occupying the same legislative body. So will congress be around for that period of time . And will of the time its around, will it have enough to devote to trade agreements . Additional issues, its worth remembering as background just the narrowness of the Coalition Support of trade and the last real measure we had of this was the tpa passage a year ago. In the house you had i think it had 218 votes. So just what you needed for passage. And of those, i think it was 190 republican votes and 28 democratic votes. This is why i wonder [inaudible] bipartisan surge to support this. That would be a real novelty in terms of where weve been on this. So those are to of the things i would also note as sort of obstacles. One, that you really have not had great congressional support from the democratic side. So there was a time, particularly when the ambassador was ustr, when you did have a centrist to decision that supported coalition that supported these things. We have not had that for a while. Weve had a partisan split, and the president has not been able to rally his party for these votes. On the republican side, you have as the ambassador pointed out very well, you had a series of objections. When they voted for tpa, they were saying i see the potential for having an agreement that would really do good things. Then they sort of voiced a bunch of concerns, and i liked the idea that it sort of seemed like a sharp stick in terms of the response. It was by no means a master class in sort of building and maintaining congressional coalitions. Often i think the way the tpp was negotiated, there was clearly an enormous urgency to get it wrapped up, and perhaps that was what motivated things. But there seemed to be much more eagerness to proclaim the most progressive trade agreement ever than there was to solidify what had been a very Narrow Coalition in support. And that coalition, you can lose people off. You had no room to lose people, but you can lose some because of things like tobacco or Financial Services or biologics. If youre doing this in the lame duck can, you can lose some to a principled objection which is simply saying its not right that congress moved major pieces of legislation like this in the immediate aftermath of an election. I dont know how many you lose, but you had room to lose, essentially, none. So i think these are some of the major concerns. On top of the question, has the Administration Even done what it needed to to win back the support of key members like chairman hatch. I want to move on, just to say i have real skepticism. I dont see the path where this gets done in the lame duck. That the oh, final point on this before i move on. Has everyone been watching how things have been working among republicans in congress lately, the past year or two . The honor thy speaker, that sort of stuff . It has not exactly been a group that has fallen into line, saluted and done whatevers necessary. This is what comes to mind for me when people talk about how, okay, well get right past the election, and everybody will immediately do what theyre supposed to, and theyll realize whats necessary, and theyll support this. It has been a fairly fractious group. So i believe there would be large numbers of republicans who would feel that way. I dont think there are 218 of them. And so i think thats a real challenge. So lets suppose we move beyond, and heres where im notably more pessimistic than the ambassador. So he quite rightly noted that more than just the president ial election matters, but lets start there. Donald trump this week was talking about trade in, to my mind, a very misguided fashion, and the ambassadors exactly right that he needs to be pressed on details. Saying something should be better is insufficient. But he certainly does not seem inclined to be advancing this in rapid order. Secretary clinton, who had previously supported the tpp, will find herself in a tough position even if we stop the conversation now, and i fear that her situations going to get worse as the campaign progresses. Shed find herself in a tough situation now because shes said she does not support the tpp as it stands, and some of the criteria that shes set for improving it are exceedingly difficult. So identifying things such as currency manipulation. Currency manipulation, this is highly problematic. Probably the best you could possibly hope for in terms of getting restrictions, and this gets to the core of what countries do with monetary policy, the best you could hope for is a sort of Side Agreement that states good intentions on everybodys part and a move for transparency. Well, that is what ambassador froman delivered. That is what they came out with. She declared that insufficient and says i need more, shes set herself a much higher hurdle than, for example, bill clinton faced when he was going to reverse himself on his nafta opposition. So shes already ruled that out. Addressing things such as rules of origin on autos, these were key elements of the agreement. That was a big part of what japan thought it got out of this agreement. So that would involve really opening things up completely. This is not a minor addendum. The other real problem, i think so two problems that secretary clinton would have were she to ascend to the presidency. One of them is that she would likely be told even if, had she merged up kateed for the rest of the campaign, that, madam president , you essentially have 18 months to get done the big things that you want to get done in office. This is your time period. Focus on that. Does she want to make one of those things a tpp agreement which would alienate labor support . Its hard to say even that it splits the Democratic Party right now. It unites the Democratic Party in opposition. So its and she might be facing one or both houses that were under democratic control, otherwise a good thing for her but not good on the tpp. So thats a challenge. The final challenge that ill note on this is as the Campaign Goes along, i think what you are going to see is donald trump and weve already seen it this week pressing her on the sincerity of her opposition and trying to pin her down. And the concern is that we will move towards a read my lips, no tpp kind of commitment as they sort of fight this out across battleground states in the industrial midwest. So that would, that would pose real challenges. As a guide for this, and ill close here, you know, whats the best sort of historical example we have . I think when president obama was elected in 2008, a number of his supporters who were protrade and multilateralists had visions that three pending trade agreements, colombia, panama and korea, would be ushered through in the sort of lame duck session. Exactly so that youd have a clean slate, you wouldnt have to deal with these things. You could step in those arguments sound extraordinarily familiar to me. This was late 2008 that these were all supposed to slip through. They were ultimately passed in the fall of 2011 after a great deal of armtwisting that came later. To me, thats probably the best and most optimistic model that we have. So ill stop there. Thank you. [applause] good morning, everyone. So im standing between you and lunch, but ill try to make it as pleasurable as possible. Thank you very much for the introduction earlier and the opportunity to speak here today. There have been several references to tobacco and the tobacco carveout, and in this presentation im going to give a little bit of background to what this is all about. What does it mean, and why is this so important . So coming from jt international, that stands for Japan Tobacco international, it might not be a surprise that im going to tell you why this is a really bad policy. So we repeatedly hear that the Tobacco Industrys abusing the ists system and that were stifling the governments ability to introduce Tobacco Control policies. Its also alleged that some governments dont have enough money to pay for the legal fees to defend themselves against claims from the Tobacco Industry. And, therefore, we are viewed as a big user or, rather, abuser of the ists system. Well, what is the realitiesome tobacco is one of the most regulated products in the world, but in real life the Tobacco Industry has not used the ists system very much, actually, just in two cases. These two cases are, again, a thing that could be described as very extreme regulations for any other sector but sort of passes down the line for tobacco. And we see that these regulations are in general not be based on science and evidence which are good hallmarks for good regulatory practices. Since the commencement of these dispute, one of them has been dropped on procedural grounds, the case between pmi in australia, so in real life theres only one tobaccorelated ists case left. The remaining 694 cases are against countries by other industry groups. So is 0. 3 of the caseload, that is tobaccorelated, really an abuse of the ists system . I dont think so. Then the claims that countries dont have enough money to defend themselves against Tobacco Industry claims. Is that really true . Let me give you a little bit of background. The back Tobacco Industry pays 5 billion a year in taxes, excise taxes and vat, to the tpp countries only. 15 billion. So there is a little bit of money coming from the Tobacco Industry itself that could be used for whatever they want to do, for instance, protecting themselves against those not very numerous ists cases. In addition to that, bloomberg and gates have set up a fund which has several Million Dollars which allows governments to tap into it in case they would be challenged by Tobacco Industry. On that basis, i think its safe to conclude that there is money to mount a legal case against the Tobacco Industry if a country would like to defend extreme regulatory proposals. The big gain touted by the supporters of tobacco exclusion is Public Health. Now, lets play a little game of wheres waldo for trade experts. I challenge you to look up on the slide where you have the tobacco exclusion in the background, and i would like you to find the words Public Health or even just health mentioned in the tobacco exclusion. Theyre not there. So the drafters of the tpp tobacco exclusion have gone to Great Lengths in order to list all possible act difficults that Tobacco Companies activities that Tobacco Companies are involved in such as inspection, recordkeeping, reporting requirements. All these activities are apparently of such a threat to Public Health that they should not be protected by ists. Really . Its obvious that the goal has not been to bring about any Public Health benefits but, rather, a lot of headlines and an allure that the government is regulating for the greater good. But in reality, this does not achieve anything except for excluding one industry from ists. What does this all mean . Im not what does it all mean that the Tobacco Industry does not have is access to ists . There are a number of protections in the tpp investment chapter which gives companies the possibility to challenge governments directly. Youve heard from some members of cato that [inaudible] all too happy about these protections, but theyre there. The fair and equitable treatment means that industries can defend themselves against biased and discriminatory regulations, and tobacco might be controversial, but why but were still a legitimate industry bringing about employment, government revenue and a significant amount of Foreign Direct Investment especially to developing cups. Why should the Tobacco Industry not be able to defend themselves against biased and discriminatory regulations . I donti donti dont know. Im not sure if youre aware of this, but in certain countries Tobacco Company representatives are facing jail time and enormous, astronomical fines because theyre challenging governments introduction of some not very evenhanded customs evaluation procedures. These procedures have even found to be in compliance with the wto, but the legal challenge still goes on against tobacco executives. Now, why shouldnt we be able to protect people working for the Tobacco Industry just like any other industry and open the door for this . Whos next . Food . Alcohol . Mining . Right . Another protection in the tpp is about transfers. The tpp investment chapter insures that private Companies Like ours should be able to transfer capital, profit, dividends, etc. , back to the country where the investment came from. Part of normal business practice, right . Its beyond us why a he quit mate legitimate industry, tobacco, should not be able to secure profits for its shareholders by channeling profits back to its owners. Performance requirements. This sounds very technical and boring, but it has a very practical side. Performance requirement could be a policy whereby a government says that all cigarettes should only be made by domesticallygrown tobacco. This is not how to cigarettes are generally made. Theyre made from a hodgepodge of different tobaccos coming from all around the world. Or you could imagine that government would say a confectionary industry is only allowed to make chocolate from domesticallygrown cocoa. Under the tpp if such a Government Measure would be introduced, the confectionary industry would be able to challenge the government whereas the Tobacco Industry would not. This is really not fair. Then the ultimate form of government intervention, expropriation. If you own something, lets say a cigarette factory, you have invested tens of millions, and you dont really want it to vanish at the whim of a government at any point in time. If you produce cars, ice cream, toys, you have this protection under tpp. If youto produce cigarettes if you happen to produce cigarettes, you dont. Why would government expropriation be more laudable for a factory without compensation in compensation . Whos next . Well, your guess is as good as mine. A lot of industries are controversial, and you see some of them up on the screen here. Some of these industries are even big users of ists. So opening the door to exclude an industry can have ramifications that were not imagined. The governments that concluded tpp keep repeating that exclusion of tobacco from the tpp is a oneoff and will not be repeated for other industries, but what if our governments look at the tpp and take example and say, hey, this is a great precedent . We can start excluding any industry where our population have a pet peeve against it. Whos next . Where will it end . I dont know. I would like to quote senator warren, who said the following im glad tobacco laws are protected from ists, but what about food safety laws or drug safety laws or any other regulation designed to protect our citizens . So the slippery slope is already there. Anyway, just to conclude, id like to remind you that the Tobacco Industry is not a big user of ists. The numbers speak for themselves, 6942. It is a policy based on scare mongering and not facts. This is also a very badly drafted policy. The tpps tobacco exclusion meticulously lists all activities Tobacco Companies are involved in but includes not one reference to Public Health. Were really faced with [inaudible] this does really not do anything to prevent anyone from picking up the habit of smoking or helping anyone to quit smoking. Removing any effective ability to redress before investors only opens the door for discriminatory the, protectiont [inaudible] by governments. Frankly, this is a goal that is this a goal that free traders want to promote . And someone will be next. Tobacco is always at forefront of extreme regulation, and its easy to score some cheap points by producing policies that get a lot of publicity. But the tpp tobacco exclusion really does not address the issue that its supposed to remedy. The back in industry is a legitimate the Tobacco Industry is a legitimate industry, and the tobacco exclusion leaves us as the only industry with no protection. This is not fair. The tpp grabbing exclusion would also not achieve any Public Health benefit. Therefore, this exclusion is entirely unnecessary. And as a last thing, as we are in the u. S. , lets recall that the ustr went against its own legislature when it out agreed to this exclusion. The u. S. Congress explicitly directed the ustr to, and i quote protect the rights of u. S. Investors equally abroad without product discrimination while insuring all u. S. Investors the existence of an effective investor state dispute settlement system. This is in the Senate Finance committees tpa report. How about that for democratic control of the process . Thank you. [applause] okay. Well, when i call on you, please wait for the microphone to arrive so that everyone can hear the question and identify yourself if you would. And then lets focus on questions and avoid detailed commentaries. I will take the moderateerers prerogative and moderators to prerogative and ask a first question. Getting to geirs issue and realizing the u. S. australia does not include a tobacco exclusion. It would take care of the tobacco carveout because there would be no ists provision. Would the u. S. Business Community Support tpp in that case . Ask bill. Bill . I dont speak for the Business Community. It was a real push to get i, ts in, and they all build on each other and serve as precedents, so i think youd probably get a lot of pushback to removing it altogether. Even though they, the Business Community did support the australia agreement, i recall. Yeah. I think there is good reason to have isds in tpp because i think there are times when American Companies need that kind of protection internationally. But i fully agree that we should not have any discriminatory activity in there. The tobacco exclusion was wrong. I have no brief for the Tobacco Industry. Im a nonsmoker, ive been a nonsmoker my entire life. But i dont want anybody discriminating against them any more than discriminating against anybody else. Okay, thank you. Questions. Right here. Mr. Gerwin. Yes, hello, im ed gerwin with the progressive policy institute. I have a question for ambassador yeutter. First of all, thank you very much for mentioning the fact that our friends in the press need to press candidates much more str