Transcripts For CSPAN2 Tonight From Washington 20120508

the white house. a meat axe. so that means medicare will grow by 4.7% under this formula that the white house signed and brought up to be voted for. defense gets cut 10%, non-defense discretionary is cut by 8% under this which is flatly funded. so we are basically flat funding discretionary defense and non-defense, cutting 10%, eight are sent. that is what this is dealing with, but you are cutting, you're taking 2% off of medicare which is growing at 6.7%. so it just doesn't add up. the rhetoric is not matching the facts. the other point i guess i would say is even with that 2% reduction which according to the white house is acceptable, it still grows medicare faster than i passed does. that is what the president is proposing. we think there's a better way of getting a gdp which is competitive bidding. people like alice rivlin, people like john brodie of the ways & means committee they think it's doable. the smartest way to do it and away at make in more providers and patients. we obviously agree, disagree on that but i would just say that i think the criticism about this particular provision doesn't match the votes people have taken round here recently, and to hear the talk about disparities. look, wisconsin and minnesota are in the same boat. we have had these debates four years about how our areas getting shortchanged or their area is getting shortchanged. it is really amazing to me and i don't mean this as a criticism of the gentlelady from minnesota we sit in these committees, talking about how we are going to micromanage the formula that doctors in our communities will get for taking medicare. it just isn't working. why not have the system come instead of having money come through the government in raining down through these business formulas that we sit here in congress and decide how it works. why don't we run the money through the individual into a marketplace where we have more for the poor, more for the sick, more for the middle income, less for the wealthy and then let the providers compete among each other for that senior citizens business based on quality, based on outcome, based on price so that those of us who represent providers who are really good, who are very efficient, they can succeed and find their own merits. to me i think that is just a smarter way to go than to sit around some committee where we haggle with one another, negotiate, trade formulas, and then just try to think we can micromanage what is one of the most complicated sectors and art entire economy. 16% of our economy and it's just not working. you know some areas we overpay medicare in some areas we underpay. medicare takes all the claims, pasted in then and it totally here or there a few percent, they follow up to see if fraud was involved. it doesn't work. the whole system is crashing. we know that. so i really believe there is room for a bipartisan consensus on how to fix this program. it's not going to be this year, i understand that the think about what are the values and the resources that work. the part d benefit works pretty well. i know some people have complaints about it because they didn't vote for it in the beginning. it works pretty well. really high satisfaction rate, extremely low fraud rate and we subsidize people based on need. wealthy people don't get as much of a subsidy. the poor get a total subsidy and middle income get a good subsidy. it seems like a pretty smart way to go. in the and the way in which that system works came and 41% below cost estimates. we have proven that approach works but more importantly it is a patient-centered approach. the senior citizen, she has the power, not the company, not the provider, not the bureaucrat, not the politician sitting around some committee fighting for some arbitrary formula change. she has the power. that is where it ought to be. that is a system that we have already proven works. so i understand the concern for this amendment. i think it is a concern that would have been nice to hear a few years ago when i cut many multiples out from the provider and with that i yield back to the gentleman from georgia. >> i yelled for us to the gentleman from texas, mr. flores. >> again we have heard a lot of rhetoric today about choices and about people saying things are not fair. what is not fair is the 47 million people on food stamps because of the obama economy. what is not fair is one out of every six americans are unemployed or underemployed or giving up working for work -- looking for work or do we talk about these choices that the other side continues to bring this as a choice between boyle or seniors or this group or that group. these are false choices. the choice that we need to be talking about is a choice where everybody wins, where everybody is better off. we need to quit talking about a choice between paychecks and food stamps. we need to talk about paychecks for everybody to win. when i first took my very first economics class, to the two of the first things i learned were the following. one, don't mess with something -- if you want higher gasoline prices, let's go tax the oil companies. do you know who gets hit the hardest? it hits middle class and seniors and the poor the hardest. so if you really care about those groups, then you will quit talking about this guys that you can raise more revenue by raising taxes on oil companies or anybody else for that matter. and then the second thing was, and what you bring up in the last chart that mr. ryan had up, will you bring that chart up again? i'm sorry, didn't give you a queue on that earlier. the one with the spinning urban debt crisis. anyway, the other thing that i learned was that the laws of economic are like the law of gravity. the more you violated the harder the impact is and we get this chart that talks about the difference between spending and revenues we will see that is what is going to cause our problems. it is not taxes. it's that big red wedge that occurs because the federal government can't live within its means. it's because not only do you have problems with the way medicare's manager of the way medicaid is managed, you have problems with the gop managing its business. we need to get back to thinking about ways we can grow the economy and therefore produce more federal revenues because more people are working and we have fewer people that need government benefits because we have more people working. let's talk about the real choice where where to bet he went and that is where we have a broader quickly growing economy and i yield back. >> i thank the gentleman for his comments and i appreciate the comments of the folks on the other side. and i hope that they are sincere in their desire to move forward and solve these challenges and we will have more than a few opportunities before the end of the year to do so. mr. chairman i yield back. >> the gentleman yield back the balance of their time. the gentlelady is recognized for five minutes to close. >> a lot has been said about using the oil offsets this year and you know, the decision was made to use the numbers and the appropriations committee struggling with that. a decision was made to protect when the sequester was changed to protect the defense contractors, and so i chose to, i made a choice and i hope my colleagues will support me. i support seniors ahead of oil. this wasn't my idea. president bush in 2005, i'm quoting, we don't need -- oil and gas companies. chairman ryan, and rutgers april 29, 9/11 said quote is part of an overall corporate tax reform, tax loopholes and deductions for corporations to be scaled back. instead that obviously includes oil companies. speaker boehner quote they ought to be paying their fair share, april 25, 2011. the leading conservative organization so you know we might not want to as a committee today with a majority want to be dealing with the issue of what we do about oil subsidies, but please, please don't, if you are not going to offer that up or agree on that, even though this is something that many of you said you would look at, tell me what else, because the across-the-board cuts to providers is really not the right way to go. it will impact seniors. it will impact people in nursing homes and to mr. price's point, health care is something a lot of us have been working on. fiscal disparities, you might not have liked it, you might not have voted for it and something i have fought tooth and nail with many my colleagues in mr. blumenauer and the rest of us to get quality and value put forward at a payment level. we have worked as part of the reform. the $500 billion that you keep referring to, democrats, you use it in your own budget to balance it. i didn't just fall off the turnip truck here. so, let's be real about what we are doing. week, by not letting this amendment pass, it will be an across-the-board cut to providers, and that means patients will be affected, our constituents will be affected. some of us, is going to really not even be the margin as to whether or not a doctor takes another medicare patient. it's going to be the margin whether a doctor stays in our state to provide the service and i am not exaggerating. some of our doctors, they are number one in quality, number one in outcome and they are number one and benefits for their tax dollars. i would ask people to strongly consider making the choice today, making the choice to put seniors over oil. thank you mr. chairman and with that i yield back. >> the gentlelady yields that the time. all those in favor say aye. those opposed, no. the no's have it. the recorded vote is requested and the clerk will call the roll. [roll call] [roll call] [roll call] [roll call] [roll call] [roll call] [roll call] [roll call] [roll call] >> mr. chairman, no. mr. chairman on on the that boat the ayes are 11 and the nose or 22. >> the amendment is not agreed to. alright now alright now recognizing the gentleman from new jersey for a promotion. >> a movie committee -- that the bill be passed. >> the question is in reporting the bill. all those in favor signify by saying aye. the ayes have it. the roll call vote is requested. please call the roll. [roll call] [roll call] [roll call] [roll call] [roll call] [roll call] [roll call] [roll call] >> mr. chairman, aye. [roll call] mr. chairman on that boat, the ayes r. 13, the ayes are 21, the no's or 13. >> the ayes have become at the motion is agreed to. i know for the record that a quorum is present and before a recognize the gentleman from new jersey ms. schwartz has asked for an article from the record. without objection. i now recognize the gentleman from new jersey. >> i've moved her soon to clause 21 that the author sets in motion as necessary and on the replacement after 2012. or a similar senate bill. >> the motions agree to and i recognize it all from new jersey. >> has denounced consent that staff make technical and from conforming changes to the bill. without objection. >> thank you mr. chairman to i asked for the requisite number of days for e-filing number. >> without objection so ordered and this concludes today's markup. [inaudible conversations] [inaudible conversations] this proposal is supposed to replace the automatic cuts that would impact the pentagon on january 1 of next year. [inaudible conversations] [inaudible conversations] this week on "the communicators" the white house cybersecurity coordinator howard schmidt talks about a tested cyberattacks against the u.s.. congressional legislation and what the administration wants to do better to protect the nation from cyberthreats. >> host: howard schmidt what is your responsibilities at the white house? >> guest: i'm the special assistant to the president and cybersecurity chordata. what that means is when we look at the broad areas consumers up to and including nation-states my role is to coordinate this across to government to make sure we are working with the private sector and international marketers. >> host: from that perch how do you view the threat of cyber attack? >> guest: it varies with different sectors and different levels of people. for example may look at state versus nation-states there is an increasing threat from some countries around the world that basically see this is not only can a competitive advantage but a military advantage that they are looking to gain. on the other end of the spectrum we start looking at end-users, credit card fraud, identity theft. as we move on line death rate continues to grow as well. >> host: so that said, why is a cyber attack or a cyberbreach at sony and national security issue? >> guest: a number of things. when you look at the massive numbers of people that are involved in this. while many people say it was a gaming system and it was sort of their ability to get and that work but those same operating systems, that same authentication mechanism, the way you log into systems. they are in government systems and they are in financial services so that is the sort of thing that gets our attention. if that happens with them it can happen other places as well. >> host: also joining us here on "the communicators" is gautham nagesh who is an editor at "congressional quarterly." he edits the technology. >> guest: now you reference the need to address various levels of cybersecurity legislatively i would asem. the house is passing cybersecurity bills including one bill aimed at increasing information sharing between the public and private sectors. the white house threatened to veto that bill before it went to the floor. can you tell us why? >> guest: sure and let me back up a little bit to what we submitted last year and when we started looking at all the issues that we have talked about for a long time, national security issues, we as a government looked at what are the things that we really need the legislative branch to help us with as opposed to things we can do within the executive branch? we? we submitted a proposal last may looking at a number of things including enhanced criminal bounties for interfering with critical infrastructure, looking at things around organized crime, looking at issues about information sharing, both in the government etc. and so that was where we started from and that was based on a lot of work not only amongst, within the government but also external partners. so when we saw this post legislation we truly support we need the ability to share information. we truly believe that the government has to give some ability for the private sector not only with each other, but we can't do that at the expense of privacy, civil liberties, liability, about some of the laws that currently exist and when we saw after a lot of discussion that wasn't meeting that threshold, we said listen, our advisers will recommend a veto if that goes forward. >> guest: the bill didn't ago some amendments. did those amendments address those concerns efficiently or would you still recommend a veto? >> guest: they do not and that it's a challenge we have. some people say they have made progress, that you know we are looking for two high that threshold and that is not good enough and when it comes to privacy for american citizens, corporate liability and the ability to share information, we look at protecting core critical infrastructure. go good enough just isn't enough. we estimate have to have a higher threshold than that which is why we continue to say if you don't take care of the things similar to what we have put in the proposal on the senate side, that we will recommend a veto. >> guest: if you mention the senate bill actually and its regulations that will address core critical infrastructure. the houses expressed a great deal of resistance to anything that smacks of a mandate or regulation. do you believe that it would be possible to get something akin to what is in the white house proposal or the senate package through the house and into law? >> guest: as a nation i think we have a long history of bipartisanship when it comes to national security issues particularly national security issues that up affect public safety and economic well-being. i continue to hope and feel confident we will get the smart people together to say listen, the small regulatory regime that we are talking about core critical infrastructure very narrowly crafted, very much built on international best practices, on the things that corporations should and on many cases are doing for their own business purposes, we don't see that asking too much of anybody so as a consequence we start getting all the people together in a bipartisan way, that fixes one small piece of the legislation up front that i hope we will come together on that. >> host: mr. schmidt and your administration briefing, administrative briefing to the president, the one released on april 25, you say that the following legislative changes are necessary. voluntary government assistance in state and local government, voluntary information sharing with industries. is that what the senate bill says though, voluntary? >> guest: we are talking about two different things. in one case what the senators talking about his core critical infrastructure. not everything is out there, we want to make a clear distinction. when we talk about the voluntary peace there are a lot of other pieces of our infrastructure that are not core critical infrastructure and we start looking at distinction particularly distinction particularly in the role we have state government small and medium-sized businesses that may not fall in that core critical. we need to have their ability to help protect themselves as well. >> guest: let me give you an example if i may. the look at a natural event, say and an ice storm or tornado that takes place, the governor local elected officials have to deal with that. the federal government comes in at some point and help sell but they have to worry about over time. in these economic times there is something we can prevent in cyberfrom having a similar situation take place, that is what we care about. in the same token within those jurisdictions we have small size businesses that if they can sell their products and that they can't move the goods back and forth, they are impacted as well so that is the other piece as well. we look at voluntary sharing as well. >> host: do you think companies have responsibility to report cyberattacks to the federal government or in the senate bill or the department of homeland security? >> guest: once again i'm a look at core critical infrastructure absolutely. i don't think any of us as citizens or as government entities want to say yeah we hope you are doing the right thing and if something happens you may or may not tell us that we need a higher level of assurance in that. i think the citizens deserve it and our government in the role as protecting the country has that role as well. >> host: leon panetta last year said that we could face a cyber attack that could be the equivalent of pearl harbor. do you agree with that? >> guest: once again it's very difficult only start attaching physical events and bringing them into cyberspace. can we experience some tremendous disruption through cyberspace, whether it's intentional or accidental or even equipment failure? cs and that is why we have to get ahead of us to make sure we reduce that risk, fully understanding we could never 100% secure everything but we can reduce the risk significantly. >> host: mr. smith is it tough to compare the world of cyber-- cyber to physical events are events that have happened in our past that we want to compare them to so we get a grasp on what is going on? >> guest: it is difficult and that is one of the challenges we run into all the time where people will talk in different conflicts in the past and say how do we compare that to cyber? cyber is actually connected to everything we do, communication, entertainment, electrical generation etc. so there is nothing we can really say that fits in the same box as everything else. on the other side if we lose some capabilities that could affect things we have direct knowledge of. for example imagine the national disaster. the electricity goes out and you can get water and you can get fuel. we know what that's like in the real world. doesn't make any difference whether it's a cyber event. >> host: the next question from gautham nagesh. >> guest: howard i want to go back to this question. you mentioned a pearl harbor, is that the sort of argument we have heard on the hill from lawmakers justifying the need for legislation? i ask this question of someone for ministry on the show recently and that is are we in a position now where a cyber attack on a foreign state actor or a criminal organization could cause catastrophic damage to our economy or a significant loss of life? .. the industries that would be regulated under the proposals are mostly against the sort of requirement because of open up not just the cost of implementation but the potential liability concerns when they are the target of attacks which we are told is inevitable. how would you address those concerns and where is the common ground is there any flexibility with incentives substitute for requirements where do you think that agreement can be reached? >> i think when we look at the incentives we had a significant r&d agenda for the office of science technology that we often work on on incentive specifically. i give an example the insurance committee doing the right thing kind of getting an insurance benefit is pretty good incentive. but the bigger picture is what we are looking for, and once again, narrowly crafted to the infrastructure easier things businesses should be doing anyway. electrical companies don't get paid unless the meter is spinning or the numbers are spinning in the day of smart grid. as a consequence, there's a business to do it so the cost shouldn't be something the government is imposing a cost on us. the second piece is what we've proposed says not create some regulatory scheme that now you have to do 15 reports in 15 different government agencies if you already have the responsibility to report any to make sure the dhs says you are doing what you need to do. that is the thing we are working on. >> it's only fair to report another concern i've heard from the cedras security expert side of things that some of that lobbying has resulted in the exemption in the senate bill in particular is that a concern for the white house in raising the bar to high for the regulation? >> when we look at any exemptions out there now openly that we reconcile as the bill moves forward, but clearly narrowly crafting the infrastructure may indeed have exemptions to it so we can continue with business and get that done whereas we are still supporting that narrow peace to keep the other industries running. >> howard schmidt you probably saw this plan want to get your reaction to speaker bar's quote in the new york times. if one does believe still to come to the internet. government ought to set standards and the government ought to take care of everything that is needed for sires security. they are in the campbell why themselves. >> guest: i couldn't agree more it's quite the opposite. the administration specifically has poured hard to make sure that the internet government for example is amol statistical for international peace. we are not looking to go and see as a government standard you have to adhere to. as the iso international standards organization, 27,000. the private sector has helped build, the private sector has put forward a lot of these so that couldn't be further from the truth. we are making sure it's available to everybody by making sure we have a collaborative multi stakeholder effort to secure cyberspace. >> he talked about merrill the crafting to the national concern. who is left out of that? >> for example you mentioned a few minutes ago about the different businesses, they are not core to power generation in large measure things that affect our ability to have water come kebir plants flying on schedule and things like that, those are the pieces we have to look at. once again, the legislation looks to have a dialogue with private sector to identify and design a process on how we actually define what business process, what company or what sector is going to be part of this. >> some have described the current legislation particularly the one in the senate as kind of a patriot act and that there's privacy concerns here and freedom concerns. how do you address that? >> that couldn't be further from the truth again. we were very gillibrand in putting privacy protections in there tall levels including oversight making sure that we have independent bodies like the civil liberties oversight making sure that they are a part of the process so it's been very, there's been a lot of work in a very deliberate effort to make sure those things that you mention don't occur in this bill. >> this is the communicators, seized in weekly look at telecommunications legislation and policy. this week our guest is howard schmidt, who is the white house cybersecurity coordinator and a special assistant to the president. gal from medish is the congressional report early technology executive briefing and he's our guest reporter. thank you. >> now, one of the tensions about implementing the cybersecurity plan at the white house instead of proposing is who should be in charge and we've seen the democrats and the white house come largely down on the side of the department of homeland security, the civilian agency. however, we've heard from the republicans and some other national security stakeholders they would like to see the nsa have a more active role. the white house has been very strong and should be a civilian enterprise. can you explain why that is? stat there's two pieces. this is an all demint effort. that's the view point we've had. the intelligence community at the department of defense has tremendous capabilities to build up over the years. they were one of the early adopters when it came to moving networks and to the internet environment we live in two days of the expertise exist. we recognize the law enforcement and fbi secret service department has an investigative role and in some cases counterintelligence but the department from land security by the congressional law as well as presidential directives have said you are the body that works with private sector to help protect as well as the belief on the implementation for the environment as well. so we support that and we think this is the best bill to leverage all the other components in the government the responsibility with the homeland security i would also like to add the department of homeland security offer in the past years have not only had tremendous leadership from the secretary, deputy secretary number of secretaries but also recruited tremendous talent that really understands this area and comes from the sectors that says this isn't all the government it's how we can work together to solve these problems. >> we have seen the dhs hi your new cyber 63 officials in the last month. but to the level of expertise necessary when you consider they are competing with the pentagon, the community and private sector for skills that are in high demand? >> there used to be a discussion i had with the industry experts like my colleague i used what with all the time i would say i'm not sure they are ready for somebody at my level. my responses do you think they are not ready by going there would prepare them better and i think that's what we've seen in the account we've got and they monitor the state department over there they have somebody in the energy sector for a couple states we had the talent and granted it's very competitive which is part of the legislation looking to give the dhs the levity to become more competitive with not only private sectors of the agencies. >> what you think of john mccain's approach no mandate? but protecting infrastructure according to him? >> the idea of somebody saying i do what i'm supposed to do but don't ask me to prove i'm doing it that's a challenge. we ask more as a country and coming from the private sector background and a background with venture capitalism and folks that put in that area we always have somebody to say if you're going to ask me to invest in you which is effectively what we are doing as a nation you have to develop all versions the you are going to deliver on these things i'm investing in. we have the responsibility to estimate is there a size of a business that we would say no we don't care about that 10% company. we aren't going to make the report to the department of command security as well. spec that's why i keep using the term infrastructure to read the things that affect the major metropolitan areas or the health and safety in certain areas of the small company that's doing great business helping on e commerce, there's no intent or desire for them to interfere with that. on the same token through other efforts in the executive branch making sure that they have disability in some of the threats that may be out there through the ftc through the department of commerce and homeland security so they've got the information so we care about them but they are not a part of this discussion. >> that goes back to the sony question. why should sony be a part of this critical infrastructure? >> i'm not sure anyone has suggested that sony would because the events that took place for such a magnitude we could see that in other more critical areas and that's the part we need to focus on not that sony would be part of it but we see what's happened in other places. >> is there and do you for see its role for the pentagon and the national security agency? >> absolutely. the expertise has been built up over the intelligence community and the department of defense, one wants to duplicate or try to duplicate because the expertise exists but to make sure the department of homeland security has the ability to leverage that on their mission. >> gautham nagesh? bernanke mentioned the threat to companies but one of the most cited as the persistent threat from other nations. we talked about how to secure a hour networks. when does the u.s. feels it is necessary to respond and can you talk about the policy in that area which congress has asked the administration to clarify. islamic the international security for cyberspace lester every sort of the first document that brought all these things together from the prosperity come economic openness, the defense, the law enforcement capabilities, so when we start looking at it as it's referred to as advanced persistent threats and a couple quick pieces on that, oftentimes getting into the systems they are not advanced it's using e-mails, pieces of mao where that are disguised as you're 2012 pay raise documents and things of that, so that's not very advanced, that is just hacking 101. the persistence is the case of a threat so one of the things we need to do we know the florida these exist every expert within the government and outside of the government spent about 85% of the successful intrusions into the systems by presumably nation states could have been prevented from the basic cyber and we like to reduce that it means we can focus on the top 15% the most insidious and the most damaging in the country then that gives the ability to follow the policy. the president has the ability and his was the commander-in-chief to designate under any national emergency the tools and resources necessary to help mitigate that stomach at what point does your view from the attack on a foreign country infrastructure constitute an act? >> i'm not a lawyer and we want to make sure we are very clear on that and we have to look at the totality of the circumstances as we said in the international strategy there's a whole variation of things that would have diplomatic and economic to a military response and all those things have to be part of the discussion based around the specific scenario that may or may not occur in the future. >> mr. schmidt are you seeing evidence that nation states are actively promoting the use of cyber attacks? >> it's interesting because oftentimes we see an awful lot of nation states talk about the threats that are out there, the military response, the national security response so there's a lot of discussion about that which comes back to part of the international strategy how we established those forms in cyberspace what are the things that we as nations agree are things the often than to normal day-to-day operations so we see a lot of their but the focus is how we sort of the escalate those things that don't affect the way that the world internet in a very positive respect and the internet and save the really dramatic things for the worst-case scenarios. >> we often read about the chinese or the north koreans. what does that mean? >> it's interesting because there is intelligence reports that basically accumulate things from their perspective, there's companies and individuals who once again we can't focus on just one piece of that. we are looking for a partnership in the international community and those that are competitive with us to say how can we bring this down to say we are not putting our country's and economies and cities at risk because all this rhetoric that goes back and forth. >> it's also a tool the u.s. could use if it chose to come right? >> adel all we think apply in cyberspace just like they do in the real world. human rights documents apply in cyberspace so these are all the things the strategy made up that says doctors all the options but available as the nation states. >> dfa 42 in the president's daily intelligence reports that he gives about cyber attacks on the u.s.? >> the presidents reports are based on products that the intelligence community based on the situations so i wouldn't say that there's any specific thing that is on a daily basis but clearly when cyber issues arise at that level the president will be briefed on them. >> if we identify your job as having three constituencies, the president, the congress and the american people come out what level would you attend to this on cybersecurity? >> i think a high level on all respects the president cares deeply about it when he establishes all this is very much engaged in the state of the union speech he also addressed the issue around cyber threats in this labour legislation, the legislative branch as i mentioned earlier received to the to receive tremendous by partisanship on the safety issues we have a lot of attention there. the industry community has really come forth and said not only do we understand the threat but here are the things we're doing. we have an industry group that's taken place and a lot of efforts to take place out there and i would also throw in the entire executive branch because the.gov environment the secretary and deputy secretaries are very much a part of their agenda on a regular basis. >> gautham nagesh? >> absent a compromise on the critical infrastructure do you anticipate some of these other measures from the house addressing cyber securities for research development and a peaceful fashion is that something the white house would be receptive to or do they insist on seeing a comprehensive package? >> we put a lot of effort in these across the sector as the year the specific things we need congress to do. which is why we support lieberman collins, rockefeller and feinstein bill because that brings all these things together and in a piecemeal going part way. there's been a lot of discussion since 2003 national security cyberspace it's time to act on it and that's why we need to have these come together. >> so with this be a better situation in the house? >> we hope that quarter heads will prevail and we will receive the national security implementation and said here is the small piece let's get them in and move forward pivot estimate howard schmidt on an international level what is the country that we could look at me be to see as a model of cybersecurity? >> it's interesting because many countries first faced with the same things we are, owned and operated for critical infrastructure, the government have a tremendous dependency on it developing strategies reaching probably half a dozen strategies coming out from canada, the u.k., australia we have german government, we have a really good relationship confidence-building measures with the government, so there's a lot going on in the international world and i think we are starting in different places that we continuously done a lot with each other to help shore up each other to make sure people don't have to reinvent the wheel from other countries. >> gautham nagesh, for one more question. >> how large a priority is cybersecurity and intellectual property enforcement in the trade talks with the u.s. is engaged with our partners? obviously we are speaking to some of these countries that are accused of attacking our networks every day. >> it's part of the things we looked at as the all government approach to matching the diplomatic, the economic, the trade issues. every facet of the dialogue, the executive branch with our international partners whether it is a strategic economic dialogue were security dialogue these are part of the agenda and increasingly being even a higher position point in those dialogues. as the mckeithen watching the kennedy years. howard schmidt has been our guest. white house cyber secure coordinator along with gautham nagesh editor at congressional quarterly. gentlemen, thank you. >> thank you. [applause] >> this week now a discussion on the role of courts and democracy. a panel of legal scholars examines whether it's possible for courts to be fair and impartial and maintain public confidence from the wilson center this is an hour and 40 minutes. >> we don't need to wait? okay. ready to go? >> good evening. my name is bill robinson and it is my privilege of this year to serve as president of the american bar association if welcome to today's special program, the courts and the constitutional democracy in america. it is truly a pleasure to be year of the woodrow wilson international center for scholars in the heart of the nation's capital. if you have the opportunity, please look around this spectacular building and facilities. this is our 11th annual milewski and our third year conducting here the willson center. we are very pleased to have the wilson center as our host and program partner. at this time i have the pleasure of introducing my good friend, and a great american bar leader mark serving as the national chair. mark? >> thank you, bill and all of you for joining us at this annual celebration. the tradition we observe today began in 1958 when american bar association president charles persuaded president dwight d. eisenhower to as published the day as a national dedication to the principles of government under the law. since then every u.s. president, including president obama has issued a proclamation recognizing may 1st as long day throughout the united states to provide electric knowledge and support the assistance of our partner organizations, our host the woodrow wilson international center for scholars, the federation of states and humanities councils presented by president mcintosh, just as the state and its executive stricter, the national league of women voters represented by the executive stricter and the national center for state courts represented by its president mary mcqueen please join me in thanking all of them for their support. [applause] i would also like to lead to which the american bar association staff which as worked so hard to organize this and our other activities kick in the public education which organizes the annual event and the communications and media relations division. each year to select a theme what can inform and inspire the hundreds of programs and activities that take place in court houses, schools, state capitols and city halls across america. this year's theme no courts, no justice, no freedom was chosen to call attention to a problem of which many of our fellow americans are unaware. the serious underfunding of the state courts and the effect of inadequate resources on the quality of justice in the nation. i'd like to share with you a brief excerpt from the proclamation signed today by president barack obama. this year's theme no courts, no justice, no freedom recalls the historical the courts have played protecting the fundamental rights and liberties of all americans. our courts are the guarantors of simple justice, social order and public safety and we must do everything we can to enable their critical work. at the courthouse doors must be open and the necessary services must be in place to allow all litigants from judges and juries to operate efficiently. likewise we us to ensure access to justice is not an abstract pherae but a concrete commitment that delivers the promise of consul and assistance for all who seek. we all join the president and the hope that this all day has provided an opportunity for all americans to reflect on the vital role of the courts and providing for the just and peaceful resolution of disputes safeguarding our rights and liberties and bringing us closer to the day the dream of equal justice under law will be a reality. we now conclude our observances with this discussion of the courts and constitutional democracy in america. thank you for being with us. i hope that you enjoy the program. [applause] >> thank you very much. at this time is my privilege to introduce and call to the microphone the debt of the president and ceo of the woodrow wilson international center for scholars jane harman. jane? [applause] it is my pleasure to welcome all of you to the wilson center for this important event. this is the second time at least on my watch the lights welcome to this group many of whom are friends especially marked with whom i practiced law in another century and in another lifetime, but many people on the podium are also very good friends and it will be exciting for all of you to hear this panel discussion. just wanted a few brief points. number one on the stage yesterday, john brennan, whose a deputy national security adviser and a special assistant to the president told the world for the first time that is in fact the u.s. operates a program that targets certain individuals under certain circumstances. he said was important to him and to the administration that this program could be as transparent as possible and that it would operate fully under the rule will fall. it was a very important speech and the lawyer in me was pleased to hear him say how important it was that our programs operate fully under the rules of law. as everyone knows in the news lately, they're have been a lot of conversation about some actions in this era of terror that some including me feel have exceeded or have been outside of the rule of law, and was very comforting to me to hear yesterday this point. one of the reasons that this matters is as we all know, our constitution is the center of basically a power, the way that our country operates. but second we as lawyers i think most of us are lawyers we believe that this is important, but in this battle against the bad guys around the world, one of the values that we have that is rock-solid most important is i think our obligation to operate fully under the rule of law, so i was very comforted by what he said, and a kind of sets of the day to me this year in a way that is particularly special. let me just finally say that i actually knew leon and i think that tom sesnon who just walked in did, too. she wasn't a close friend of mine but many of the people that worked for him on that watergate commission i guess it was called for people that we worked with on the hill and new as peers, and there was a very difficult and stressful time in our history. many may not have lived through it or listening to this broadcast, the fact that our country survived things like a saturday night massacre when i personally thought that the city might erupt into gunfire is another testament to their rule of law so let me just say that the wilson center loves hosting this event. i personally think it signifies something very important to all of us as lawyers but also in these stressful times when there are a lot of issues about some of the operations of our government is comforting to know that officials to come to the wilson center like john brennan and pledge to uphold the rule of law. thank you for being here. i hope that you all enjoy the panel. [applause] thank you very much, jane. our theme this year as all of you here now know is no courts camano justice, no freedom. we selected this theme to emphasize why courts are so important. we also want to underscore that without our courts, we simply could not sustain the rule of law and the united states. indeed, open and accessible courts are the cornerstone of a free and space society. the framers of the constitution recognized the importance of the courts when they made the judiciary one of three coequal branches of our federal government. our courts, federal and state are where we go to have our rights protected, our injuries redressed and other disputes resolved. our courts, however, need adequate funding to ensure that all americans have access to justice. without the access to justice, the fundamental freedoms that we all enjoy and treasurer are profoundly threatened. unfortunately there's been a troubling trend in the state courts as the result of declining budgets and increasing workloads. many of our state courts are seriously underfunded. this is especially disturbing because state judiciary's scandal over 95% of all cases processed in this country. courts simply must be open, available and properly funded and supported. courts are the very guardians of our fundamental freedoms. we must all do our part to sustain them so that they can do their work to sustain constitutional democracy in america. a constitutional democracy is the key to freedom, and freedom is what we are talking about today. i am pleased to introduce our program moderator. john is managing editor and host of the wilson center's award winning television and radio program by a lot. he also serves as the wilson center director of communications. he's a veteran broadcast journalist and communications professional with extensive experience as a moderator, interviewer, anchor, reporter and producer. he's a frequent moderator for the leon jablonski series and other programs and panel discussions of the american bar association division for public education for which we are very grateful. i am now pleased to turn the program over to john and look forward to this panel discussion. john. [applause] >> you were kind enough to not add all day but in the spirit of transparency welcome to the wilson center in ehud and welcome to be for what i want to add my welcome as well, and some of you are familiar faces from the past programs that you've referenced some newcomers as well and we are glad to have you. i also want to say hello to those of you joining on c-span and we are happy to show america's favorite network is here today to cover this event because we have a lot of interesting things to talk about but my job in addition to leading the conversation all of you did pick up a program on your way in and if you get extensive biographies i'm going to give you the abbreviated version and those joining us via television so i will do it from your left to right. next to me is christine durham, a member of the supreme court since 1982 and she served as chief justice and the charter of the utah traditional council from 2002 to 2012. also with us mickey edwards, mr. edwards was a member of the u.s. house of representative from oklahoma from 1977 to 1992 at the aspen institute and linda greenhouse is a senior research scholar and law and distinguished journalist president at yale law school previously she covered the supreme court from the new york times. sherrilyn ifill joins from the terrie school of law previously served as assistant counsel of the naacp legal defense and educational. finally jeffrey rosen at the professor to the dhaka university law school is also the legal affairs editor for the new republic and as a mullen resident seniors hello at the brookings institution please welcome our panel. [applause] >> i want to begin with the concept everybody knows the concept of the elevator speech. did any of you have to tolerate one on your way in today? this is in concert in sort of sales or marketing or public relations, this idea that if you have only captured a person's attention for the time it takes in an elevator to reach its destination and let's pretend it is the wilson center and the empire state building the question is what is the elevator speech you're responding to the question about the role of the courts in our constitutional democracy would is the briefer version of that, what would you tell a newcomer to the country or an area invasion force from a different planet or someone you were trying to educate on what that's all about and let's do it in reverse order of the introduction to estimate how much times as it take to get off the elevator. >> start your timers. >> the role of the court is to enforce constitutional limitations when they are clear and to defer to the legislature when the constitution doesn't clearly speak. basic rights like freedom of speech, freedom of expression, privacy all these enforced by courts are ultimately the constitutional liberties more leeway judges but also by engaged citizens of the united states of america. everyone wants to flee at this point. [laughter] >> i would say that no right to hold in a democracy has any meaning without the presence of the court and we have all equal the interest, should have equal the interest, and it's the one branch of government that i think actually cannot, that it's absent means the absence of democracy. there's going to be problems in legislature. some of you have mentioned watergate for example. but when the courts lose their essentials assumptions, when they become corrupted, you cannot have a democracy. >> okay. jury good. >> to build on that coming you are talking to somebody that long ago in my career went for an interview with the mayor of baltimore and i consumed an entire sandwich in the elevator in his office was on the second floor. independence we think is the key to making work the principles that jeff and sherrilyn enunciated and i'm going to close there is essence in this book, and it was my favorite before i saw it here, justice breyer talks about the judicial independence and this is on page 12, and he says ultimately independence is a matter of custom, habit and institutional expectation to build those customs and expectations requires time and support not only from the bar with the communities where the judges serve. so talking about the culture that respect the courts, trust the courts, supports the courts, and i think that's part of what it's about and why we are here. >> congressman? >> democracy is not an end, it is a means coming into the democracy is about process. the important barometer of what is a healthy democracy like this side we try to get established in other places and try to preserve in our own country are two things. one is the ability to choose for ourselves who will make the law that we will live under and second, to establish justice of that's right at the very beginning of why we created the constitutional system we have to establish justice that's not ought in the dispute settlement in protection against overreach by government but it's also to make sure that every citizen has a day in court in front of a fair and partial judge. is beckley's kicked this to the utah supreme court's. >> perhaps where the rubber hits the road with respect to the state courts i think i would offer in answer to the question that suggests the mission of the court is the fulfillment of the state constitutional obligation to its citizens to provide a fair and impartial forum for the resolution of private and public dispute and to the vindication of the individual rights. 64. that concludes the discussion. [applause] >> of the american novel version. now what i'm going to ask you to do is a little free-for-all. you have already begun to do it. what are the essentials of the system? what are the non-negotiable, what are the primary things without which it cannot function effectively? it touched on some of those things like independence and access. let's see what kind of list we can put together the next few minutes. we would like to begin. >> i will take the pragmatic approach again and said just that resources are essentials. one of the things i've learned in my experience with leading the system and working with state court systems all around the country is the courts are no longer a small private affairs. i wish they once were, they were once local courts existing in small communities. they are now large complex organizations and the volume of that 95% of the nation's judicial business that the president diluted to translates into close to 50 million filing exclusive of traffic in the state courts throughout the country every year and without adequate resources they can't lead to just resolutions of dispute. estimate your chariton number with me in an earlier discussion today of the difference between the amount of the federal cases versus the amount of space to estimate when you translate the 90% for the last number that we have relatively accurate figures in a single year the federal court in bankruptcy saw about 385,000 cases filed per year. in the state courts nationally for the same period of time and that is for the whole country. in the state court the aggregate number was over 47 million cases. so, it is truly a staggering disproportion. i don't mean to be disrespectful to the court but they don't do as much because we do. >> how about the power of judicial review. we got a great excerpt from alexander hamilton who says without the ability of the judges to strike down the on constitutional law, then the people cannot be and he says it is better than anyone else. so he says that it is crucial. here it is. no legislative constitution can be valid to deny this would be to affirm that the deputy is greater than its principal, the minister, the representatives of the people are superior to the people themselves. this doesn't pose the judges are superior to everyone else but the part of the people are superior to both and when the will of the legislature declared the statute stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter rather than the far and that is the basic idea the legislature's represent themselves with the temporary passion of the people and the fundamental values increased in the constitution unless the judges can enforce those values the constitutional limitations will be lost. >> linda, you tried to get in earlier periods the madrid is going to mention the transparency because i think people have to feel that the courts are doing their work in the public space, and you can debate the kind of fine points of this, but one area of concern is the of privatisation of justice to the extent that the dispute resolutions of the various kinds move into the hands of private arbitrators. that's fine for efficiency and it probably works pretty well much of the time for the parties but it cuts out the public, and i think that's something we have to keep in mind to be this big guy was going to vote for transparency as well and it's not only of the process of the judicial decision making but also the judicial selection. i think the public has to be able to feel and see justice. just as it isn't something you can hear about bye rumor it's something you have to encounter to believe in it. the question of transparency is important. the public has to feel not that they necessarily have a direct role from everyone that sits on the court but they can see the mechanics and the mechanisms that worked that show how judges get selected from a nose behind the curtain selection of judicial officers because judges have such power and because we want to have a level of respect for them and to put them in this position, and that really requires that this be transparent to the public. to go to linda's point the transparency issue is important that the open court, the idea of being able to walk in and sit down and see any proceeding and watch the justice on the bench engaged in an oral argument or preside over the retrial is critically important to our sense of the courts as being a real space institutions and to the legitimacy of the bench. anything that happens behind closed doors leads to the innuendo and so forth and i think that linda is being quite charitable. the move towards the privatization is actually a danger quite frankly to our democracy and a danger to the legitimacy of the justice system. the more that the public doesn't see come the more mischief can happen but more importantly the more the appearance is the we don't operate in a system of transparent justice. if estimate trust is essentials. they don't have their own army. lives its life blood in the trust and confidence of the people. >> on the transparency that's a very important. one of the ways you judge what is most valuable is when you look at what's under threat and it's important people have confidence that the court is fair and impartial but when you come before the court you are going to get a fair hearing. and isn't predetermined and to the extent of the state level there are people that run for office, the court system is within a space system that and is not space and the fact that we have people going before the court knowing that the judge got supported by people that might come before the court and might be on the other side of really undermines the ability to have trust in the outcome. the idea that we run political campaigns with individual contributions i think is a serious danger to people being able to have confidence that they are granted it a fair consideration to spend it is a seamless web all the things we are talking about because in the absence of trust the public isn't going to be willing to give the courts the resources the courts need so it's a kind of death spiral it to go down the route the public is only going to support that which the value. >> i would add a third dimension on transparency mentioned decision making, you mentioned the judicial selection i would add to that because i've lost ten years of my life engaged in the judicial the administration but the courts have also got to be accountable to the public for their use of public resources and for their performance which implicates the judicial performance evaluation which is very much accepted in the state court system that not so much on the federal side and the notion of performance measures as institutions have gained a lot of traction in this notion that we are about the public business and the public is entitled to know how we are doing. >> can i ask a question about transparency? i just got the latest approval ratings for the u.s. supreme court the was a poll taken after the healthcare argument and hoppin the previous low of the 50% in 2005 about three of ten have unfavorable approach in 2005. is it obvious health care before integration? >> who is is that? >> pupil. >> the wizard of oz theories is the opposite. the more than men and women are in black robes behind the curtain speak in of a ready and the less you see the more you are able to trust the charismatic leader and it might be when people see those arguments and see the ads afterwards where the individual lawyers are taken out of context sort of stammering and their attack ads based on the arguments. estimate along those lines i want to ask a question on this, this program is being shared with viewers across america on c-span lurking on the door of the supreme court asking to allow cameras in for decades and you went through the process in the congress where the cameras did come into play. what do you think? is this good for trust and respect for the institution or doesn't do what is described pulled back the curtain and expose the wizard? >> i don't want to suggest that people watching congress feel very good. but i don't think the cameras and the visibility have that effect. the a very negative effect at first and that members of congress are aware of the cameras there were sort of playing in the cameras but after time to forget they, are there so why don't think it really affects what the members of the courts do. i think it does make the citizens realize the people that are on the bench or human beings. they are not infallible, their grammar may not be always right or they may seem mean in a question they ask me and i think probably the point that jack made is that there is probably some value to maintaining the mystique. that requires you to have a lot of trust and who got put on the bench and how they got their. but there are some things that have hang everything being open to public view is not always best i've argued. >> i've argued in terms of congress. one reason you can't compromise now is because every meeting, every meeting between the house and the senate is sublet to public view. you can't do the kind of things. spaghetti compromise -- >> you are selling out. >> i would like to take issue because i think the united states supreme court is generous and is not a good model for assessing the way the courts relate with the public and the public relates with the court. for example, in the state courts i think a majority of the states now we have cameras full-time amol of la repubblica and trial courts and the business of the public gets done and the judges are much higher than of the u.s. supreme court. i think it functions in an entirely different context. >> what with the difference be? >> it seems to me what jeff is talking about is not just the presence of argument because we didn't see the argument we didn't have cameras in the courtroom. he's describing the approval rating having dropped after the arguments had been interpreted by the media. he's not talking about seeing the argument on c-span and being able to make up your mind. we are talking about the arguments having happened and they sides having spun what they are going to spend and the public responding one way or another to that. on the one hand, yes of course. when we are very young we think our parents are perfect until we learn they have clay feet we can say keep it all mysterious so they will love the court and think they are wonderful but i think that in the functioning, christie it's important that we not infantilize the public. i don't think any harm would come by having bikschote -- cameras and as it currently stands so as a job which it is a fairly demanding job which is important but that is only one aspect of transparency and we just have to be careful. i mentioned that transparency and how they are selected, there's transparency in the process, so that could be cameras in the courtroom where i think having the cord people can come into but it's also the judicial decision making appearing as writing. where we don't know what the opinion isn't some of the decisions we don't know the basis that is a transparency issue so there are multiple levels of the court kind of revealing itself, showing how it works, showing how it thinks but i think it wouldn't be corrosive of public confidence but what support public confidence and i and our tendency is to think it's just the cameras. we saw them there are a myriad of ways that the supreme court by the way is not representative hides behind the veil and it's not just about televising oral arguments, and some of those things i think would be helpful to building confidence in the court. estimate to mention the various dimensions, the level and that is what we have teamed up here is a very complex topic that we will not do justice to in two hours. it's impossible. we could spend a whole day but we can talk about some of the things you are interested in. that's all i want to say now before i go back to more questions. eventually we are going to come back to yours as well. which of the various aspects of this subject matter you would like to focus on because there would be the opportunity to do that, and 1i would like to focus on now is the first that you listed when we asked the essentials resources because it is this emerging theme during the discussion is that all of that other stuff sounds great, but you have to pay for it. it seems to be basic theme in the world and in america right now. i want to ask about that and think in terms of how we characterize the challenge the courts face. is it a crisis? is it on even in a way that the crisis in some places is just fine in other places but when you look across the country and at the justice system and get back to this fundamental eisel component of the necessary resources will for filling the constitutional mandates that provide the checks and balances to do all the things that we expected to do, where we sit as far as this funding issue, the hyperbole is it accurate? >> it depends what you mean by a crisis. [laughter] if i crisis you mean that we are at a juncture where we have to fundamentally reexamine the way that we have been doing business in terms of our support of state court systems, then i think we -- >> more eloquent than i would have said. what i think of the crisis the british are coming to the it is this an emergency are bad things going to happen if we don't pay attention, or is this more of a technicality? >> bad things are happening. the aba's boy is report commissioned of repaired reports made a stab at collecting of the empirical data about the impact of the loss of the funding in state courts around the country. now it isn't universal. they have so much money to other courts haven't been suffering at all the other places are suffering for leyna employees, they are actually reducing salaries for judges said the state judges in new york until recently. >> what is the mean? >> what it means in the state of florida for example is to assess the impact of the inability to get foreclosure and other types of commercial cases through the courts in a timely fashion. they've estimated the damage to the economy in general as close to $10 million, not to mention the human cost associated with people that can't get to court promptly. so there are people suffering in very real ways. islamic it's the administration of the courts but there are also problems with the inability to afford getting good competent counsel for access to justice sometimes compromised in the private law firms, some of the pro bono operations are being cut back, so that is an important place, too where the lack of funding compromise is the ability of some people when the court to actually get a fair hearing. >> our data in the court system suggests the domestic relations cases so divorce, child custody, visitation, all that stuff, close to 75% of the cases filed one or more parties is not represented in that litigation. they can get a hearing but whether they can get a fair hearing of without help is a question. as delegates also the question of the conviction of the innocent. >> to under 50 people exonerated because of the dna evidence and the studies put down the failures of badly organized lineups which were overly suggested, for genetic and forensic data presented to them and dillinger to record intimidations of course confections and testimony from jail house. all these things could be alleviated with money giving people access to dna evidence recording confections confessions. >> applying better science? >> if present litigant that is well off can actually afford to hire the best expert witnesses and you have access to the best point of science that exist whereas people for the prosecution are responsible for the basic areas of science as found by event courts resulted in unfair convictions. >> again i don't want to get caught up in the semantics but the crisis word is in play. this is a public presentation people that are new to the subject matter is the opportunity to engage now a colleague of listed many others. no one, democrat or republican, liberal or conservative can deny this just as when an innocent person is actually saying a miscarriage for the person does wrongly imprisoned or even sentenced to death in some of these cases to criminal goes free and commits more crime so the persuasions can unite her mother because it can be fixed and it's fair to talk about the crisis. spread so like any budget question of priorities, taking the justice system as a whole what seems to be our priorities? one is incarcerating with of the people, so in many state budgets, the prison budgets are eating up everything else and there is a great lobbying effort on the part of the prison industries both the private companies that run the prisons, the guards that work in the prisons, really nothing against a more rational incarceration policy. that's one thing. >> i have heard judges say, one about a program a couple of thing that he had trouble sleeping at night. realizing that there is simply no way to administer fair and impartial and informed justice to immigrants because the lower courts in the adjudication system don't have to give reasons. so there is nothing for the federal judges to go on the period it is costing so much money that could be spent on a more rational immigration policy. but with other priorities and focus, -- >> what you were grading system on fairness and impartiality? >> which system? the justice system that we are saying, the one that is potentially under funded? >> i think it is actually not very helpful to simply plug up the question of the kind of funding of the court. once you start discounting your justice system, you are in trouble. no matter what aspect you are discounting. if you start trying to markdown and penny pinch, you get what you pay for. there is no question about that. but there is a bigger question about the allocation of resources within the system. as linda pointed out, some of the problems. they go all the way to the very beginning, the practices. all of the ways in which we have overloaded the system with criminalizing certain kinds of conduct that don't really require the kind of attention, time and resources, that a full-time judge sitting on the bench has to bring to bear any case. if we look at the practices of prosecutors, there is a wonderful article this week by alexander about the misdemeanor cases and those doescher of innocent people to plead guilty in misdemeanor cases. we began to look at the conduct of prosecutors and the failure to hand over exculpatory evidence. we have had a number of supreme court cases in which prosecutors have become notorious for not handing over exculpatory evidence, resulting in the incarceration of individuals, including those on death row, for 10 or 20 years. those specifications and cases we hear about. how we are using our resources in the system, the way in which we are responding to an emotional need and the public, we are not running our system am a particularly our criminal justice system, in a way that we should require of any system -- which is it functions on facts and what works and logic, it functions on the best trained people. i don't think we're doing that. i think we have infused our system because violence strikes an emotional chord in all of us. but i do think it requires a second look at how we are allocating resources in our criminal justice system. if we want to allocate them towards violent crime, that makes sense. but there is lots of ways towards allocating resources to nonviolent crimes that is taking up time and space of judges that have to comply with the speedy trial requirement of the constitution, to heat and take your trickier these criminal cases. we have an imbalanced allocation throughout the system. if we really want to talk about resources to the court, we have to take this hard look that linda has begun to suggest and say, we can't operate businesses -- business as usual. we have to actually say, what do we need today in this century in 2012, to run a competent, fair and impartial judicial system and a system of justice. how do we do it and how we do it in a way that honors the money of the taxpayers dream act. >> could i echo this point, which is set untrimmed such an important one. our system is focusing great resources on nonviolent crimes rather than violent crimes. this makes us an outlier when it comes to western democracy. in europe there is a very strong proportionality and civil that says that the intrusiveness of government should be proportionate to the seriousness of the crime being avella waited. that used to be in force in the american system by jerry. at the time of the founding, the center of the fourth amendment -- the jury held that you could not identify the author of a pamphlet criticizing king george, because seditious libel wasn't serious enough to rummage through other people's houses. but increasingly for complicated reasons, we have seen the courts saying that there should be no proportionality principle. just a few weeks ago, the supreme court said you could arrest someone for an erroneous speeding offense, taken to jail and strip search them. a very intrusive strip search for a nonviolent crime. that would've appalled the founding fathers. gerri: how did we lose a? you have a sense? how did we lose that. i think that's the big question. >> some of it came in our reaction to what we see as spikes in crime. and we do have spikes in crime. the question is that all of the data now demonstrates that crime levels in the united states have dropped pacific way. at the same level they were at in 1966. the question we now have to ask ourselves is why is our incarceration rate so out of whack from where it was in 1966 dream act in other words, we have too many people in prison. we have a justice system that is overwhelmed by nonviolent criminal offenses, by low-level drug offenses. and, in fact, we no longer have this spike in crime, when we going to recalibrate so that we are using our resources appropriately. we should be learning from the past instead of going on this roller coaster. >> one thing that we are illustrating is how it is impossible to segregate these issues. they all overlap in ways that are very complex. >> is a matter of fact, why i agree with everything that has been said, i find, from my perspective, it is a frustrating session. the courts and the judges -- the judges in the state courts find it almost impossible to have any impact on the public policy and discussions you have identified. we have made contributions. for example, there is a move towards evidence-based sentencing that has come out of the drug movement, and that actually originated in the state courts. but we don't get legislature to recalibrate its emphasis on low-level crime and on harsh punishment, and we don't get to have an impact other than to compete with them for money on the executive branch agencies who work constantly to seek the industry of which they are a part. >> so when you were chief justice, did you not feel that you had the bully pulpit to talk about this? was that it is inappropriate in your situation? >> you have to be very careful. there is such a line between policy. if it affects the administration of justice, you can do it -- and we did do it with a good conscious. >> when we start talking about overburdening the courts with minor crimes, there is also the question about prosecutorial discretion. we do have a problem in this country with prosecutors bit overzealous. who are too quick to take things into court that don't rise to that level of concern. that -- that puts the burden -- they say were going to bring this to court, it ends up in the quarter. and that just adds to the work. >> whatever issue we focus on from moment to moment in our discussion, i want to get back to this bigger picture about understanding about these issues. and also why they are understood or misunderstood. jeff brought up the branches of government. also, the justice at stake, one of the cosponsors of this event. the survey showed a lack of positive reactions to the notion of judicial independence. is that correct? is that a correct characterization of the findings? what i am wondering is those of you who teach about law, who practiced law and report on law and sit on benches, are you doing enough? are you doing enough to communicate these issues to the the public and wait where they get it and they support the right things and provide resources, they do all the things that we need the citizens to do to create an effective justice system? >> i think you are asking every question. i do think that there is a lack of understanding precisely what the judicial function and role is supposed to be. i think that we hate have become overwhelmed by politics and the horse race of politics. some of it happens -- this is the point i wanted to get to you earlier about the supreme court. the encounter that most citizens have with the justice system is usually traffic court. the personal encounter, frankly, is with the judge who is at the lowest end of the totem pole. it is not because they encountered john roberts in an argument. [laughter] the reality is that that is the justice that people encounter. sometimes it is within the criminal system, but mostly it is not. most of it -- most of us don't sue someone. so that is not the spot. if you judge it based on people's actual encounter with the system, and everybody comes matt out of traffic court -- the reality is that it's not shaping people's views on the court. they are having that encounter a bear coming out of that encounter. and they have their story. everybody has a traffic court story. sometimes it goes well other times it doesn't. but what is happening is that there is a story that is being told about who judges are and who the courts are. that story does come from the supreme court and the media's attention and focus on the courts. confirmation hearings -- proclamation of confirmation hearings, it has penetrated our thinking. that is how people get this idea of whether we want them to be independent, whether we don't, whether they believe in abortion or do not -- those are the things we tend to associate with judges, even though in the reality, the 47 million cases don't have to deal with those issues that we talk about on this case. we are totally skewed. the tension and media focus on who the judges are, the kinds of cases that they get to rule on. it is completely at odds with what the reality is, the judges and judicial decisions. >> so federal government's performance in this regard, and the focus on a top-down reporting model is giving justice to that name? >> it is. and i will hold responsible to, law schools, most of the cases we are missing on. for the most part, we are teaching cases in federal court, we are teaching a pellet cases, not other cases, and appropriately so, because students need to know what the law is and the highest law of the land. that is important. but that emphasis actually skews the view of the public, and even of lawyers of the rule the judges actually play on a day-to-day basis and the way they interact with litigants who appear before them. >> linda is next and then mickey edwards. >> let's make a little distinction here. i don't think the problem is what we teach in law schools. i don't think the problem is the top-down media. i think the problem is the problem which sandra day o'connor has been devoting her post- court like you. which is a basic lack of education about civics in a country. there is very good research that shows that the more people know about the court, the more it they are willing to support it. the less they know, the less they are willing. to the extent -- i mean, you can't blame the whole thing on no child left behind, but to the extent of -- the only thing that matters is math and science, then you have people coming out of high school but can't name the three branches of government. it is really a major issue. [talking over each other] [talking over each other] >> it is so profound that i can to feel depressed about this. >> would we think that would look like? i hear people say that educational could be overcome. i look at the textbooks. some of them, for the most part, they learned. they learned about the justices at. [talking over each other] [talking over each other] >> in eighth grade they had a course that was devoted to american government and they spent a year studying about it. and they have done things. i am wondering, what are the components? something is missing. but what are the components? >> there are specific things that are being taught. >> your kids are lucky. >> i think that is rare. my daughter had a national, state, local government class in eighth grade. [talking over each other] >> it's hard to identify a root cause. part of the problem is government is treated like an unnecessary evil i best. civics is tied to that. [talking over each other] [talking over each other] >> that is true. i've been with justice o'connor on several occasions. when she talks about this, she is very convincing. there really is a problem. there may be exceptions, there is another problem. when people are judging what they think of the courts, and that is the politicization. i will tell you now that if, for whatever reason, president obama has the opportunity to appoint someone else as his nominee for the supreme court, that before the appointment is made, before we know who it's going to be, all the democrats will be for it and all the republicans will be against it. if mitt romney wins, we have a republican president. he is able to name somebody to the supreme court. all the democrats will be against that nominee come in, and all the republicans will be for it. that's not the way it used to be. it used to be a very different system. some of the most important and even controversial justices in our history were overwhelmingly approved. that time is gone. people are looking at the court, looking at justices through a political prism. i think that is helping to underline confidence is impartial arbiters. to what to the other courts are responding? >> all of my colleagues have suggested it is wrong to focus on high-profile cases. the truth is when you have a supreme court with -- of course, health care, which would transform the image of the court to the public, it is hard to get that bipartisan idea back. when chief justice roberts took office, he expressed frustration about the decisions in the media and the focus on it. he said that his ambition was to transcend that partisanship and to promote narrow unanimous decisions were people on both sides could converge. he said he thought it would be good for the court in the country. i think so far, his success has been mixed. he has had some success in some important cases. this is why this is such a moment of truth. [talking over each other] [talking over each other] >> along the lines of what he said, would you be critical of the court for deciding to hear the health care case or immigration case and hotly contested political issues, that the rule would be made on the eve of an election -- a presidential election? >> they did have to take the health care case because the lower courts disagreed. they didn't have to give three days of argument and examine every single aspect -- [talking over each other] -- yes, because it was right. the history of the court dodging this before elections -- to decide when broken down for political reasons, it is not a great -- >> this problem you identify is exacerbated in the state court setting, where some 37 states still engaged in contested election of their judges. it is ironic, because the election of judges was regarded in the mid-19th century as a reform effort. a reform effort against the appointing authorities that had been appointing judges under an appointed system. what turned out to be the 19th century reform has now become the 21st century is a disaster, in that judges are forced to be politicians. they are forced to seek contributions. it undermines public confidence. the justice at stake has been very helpful in documenting. something that has been just another thing that sandra day o'connor has focused on, because she sees those two things, one of the most startling things to me, having been on the bench for a number of years, and being in a state that has merit selection and nonpartisan uncontested retention, lester, for the first time, there were no fewer than five challenges to judges and justices on high courts and state retention elections. you have to go all the way to the back unchained unction. >> it seemed a as if there was a time when criticizing judges and justices were something the people were careful about. they didn't want to undermine the system. [talking over each other] [talking over each other] >> newt gingrich by questioning the authority of the courts was going back to jefferson -- >> john, what has changed, however two what has changed is the massive amounts of money into judicial elections. [talking over each other] [talking over each other] it had already been done, before citizens united. particularly in a variety of states. the reality is, as much as i laud justice o'connor's efforts, she has had a conversion. she was actually part of the problem. and she has found that she has been -- [talking over each other] [talking over each other] -- she has come back in and it is wonderful. however, i do want to -- i do want to point out that is not just the elections themselves. there are ways to conduct elections that can deal with some of the problems that you talked about. nonpartisan elections, public funding in north carolina, there are ways to deal with this so that the process, the reform that the jacksonians wanted to have happen is that you won't have justices that prevent themselves -- present themselves to the people and are not appointed by the wealthy classes. i can understand the impulse. now, citizens united will ratchet it further. the case said that the judge had to recuse himself after he had received -- well, he had not received it, but his election had been supported by $3 million from an individual who had a case to appear before a justice on the west virginia supreme court. someone said to me earlier, we turn to to learn about that because most states don't have it. we learned about that one case. but we don't know about the many other instances in which this kind of thing has been happening. if we are pointing out that the supreme court has been making a buy for decision, including the chief justice, who thought it was okay for the west virginia supreme court justice to hear that case of that individual, who had donated $3 million to see to it that justice would be elected. we have a real problem at the state level with judicial elections. it is not just the word of elections, it is how they are connected and money, money, money. >> we are going to get a few comments on this and come to your question soon as well. howard, if you could direct the microphone handlers come and position yourself in a place where you can be seen, and those of you who have a question, -- those are the people whose attention you need to get. then we will come to your question soon. let's continue up here as well. >> just to } what was said about what happened in iowa and the other states this last election, the jury planned the merit selection, which was the gold standard for the state courts. it was the greatest of the good government kind of ideas. now, it is gone. >> it is under attack even in places which are trying to hold onto it, like missouri. >> is there hope that this montana case might be an opportunity for the court to reconsider citizens united? this is the hope of the advocates to say that the evidence of corruption was so great, and it was a state election, which the supreme court has been more sympathetic to regulating than the political system in general. the hope is that maybe justice kennedy might steer way of saying that no one judicial corruption is such a big problem. >> if they want to find a way, they will do it. >> i just want to make sure that we started out this conversation by using the things that we thought were essential. i wouldn't be myself if i didn't say that diversity was critically important. this is diversity of all kinds. racial and gender diversity on the court, i think we still have an eight circuit court of appeals that has only one woman on it. we have gender diversity, we have racial diversity, but we also have diversity of background and experience. i don't know if you have seen the recent study of art current supreme court justices, and it is a very narrow profile of supreme court justices that we have. we have a latino supreme court justice, we have three women and an african-american, but they have all gone to harvard or yell. we don't have justices that have engaged in private practice. thurgood marshall was the last to engage in solo practice. he's the last justice who represented a criminal defendant at trial, let alone a capital case. we are talking about a narrow background, most of them had been, with the exception of elena kagan, appellate judges. justice stevens was the last justice who served in the military. justice o'connor -- [talking over each other] [talking over each other] >> we are talking about a very narrow slice of individuals who are serving in the highest court, and then we have ongoing diversity problems, racial and gender throughout the federal appellate system and district court system. also throughout the state system. that is critically important because that goes to the public sense of confidence in the judiciary. the sense that it is not closed off. it is not a select group. and it also goes to the quality of judicial decision-making. we should want all the kinds of people deserve so that those experiences, legal and otherwise, can interact and we can get the best most informed judicial decision-making that we can. >> before we turned the questions, one other thing i would ask you to comment on, he came up earlier. i think you brought it up about the courts not being a democratic institution? >> i think they are. i have a book called the most democratic branch. [laughter] [laughter] >> the courts to play an important role in checking the minority. in some cases, especially the first amendment and when marcus he is quoted. when you look at the course of history, the courts tend to follow public opinion instead of go with it. when something is intensely contested, there is often a backslash. we think of brown versus board of education. a great example of this. brown was 64% supported by the country. >> what about those that say the courts are the defense of the rule of law against this. >> we had a defense counsel that said that defense courts are going to prevent this, and the founders had some aspect of his and their civic republican thinking. but i prefer the quotation from hamilton that stressed it is not following the polls in any crude sense or preventing the mobster ruling, the forcing fundamental values that the country has accepted over time. that is why interventions are important. the great fourth amendment decision. they have to be used sparingly. when the judges believe that they can impose the contested vision of justice on the country, they often get into trouble. that is why debates right now are so poignant and important. questions from health care to affirmative action to campaign finance -- these are things about which the country is on a razor's edge. when you just put your thumb heavily on one side of the scale, then you provoke a lot of popular contestant. >> that is the point of having a tender and salary, but can be reduced. they are supposed to be able to take the heat. they are not supposed to try to calibrate between the two sides and say, well, i don't know the country is ready. they are supposed to make a decision based on what they believe is the law. >> do they represent democratic institutions? jeff is saying that they are democratic. >> i think the institution is a critical part of a democracy and i meant that they are not -- it is not -- [talking over each other] [talking over each other] >> remover that the apparatus that creates the court and it keeps the court there is democratic. it doesn't mean that every function of the court has to be by majority rule. i think that when people think of democracy, they think of majority rule. it is so much more than that. >> well, i think of it a step beyond, in the step that this is in the minds of the people in the constitution was constitution was enacted. to the extent the judges are performing a function of indicating those values, they are indicating the values of the people and what is more democratic than our? so, that is the sense in which i agree. >> i do think there are some standards that have to be appellate. i had the opportunity to do a book review, and i read that and i do not know if he even knew what the constitution once. [laughter] [laughter] >> did he include that in the review? [laughter] >> he didn't say that. you know, there is some fundamental here for the purpose of the court, regardless of the makeup is to apply the law is. because it is not the lawmaking branch. it also trying to make it representative of the community at large in what the community now things would be good policy. it goes contrary, in my view, to the purpose of a court. [talking over each other] [talking over each other] >> this is an important debate. and i'm sure that mickey was -- he is right to embrace the traditional rebuff conception. but the notion is part of an older, bipartisan tradition. judicial minimalism. it should go one step at a time, it should only second-guessed democratic positions when the arguments were clear. i just want to thank prospectively without seeing who is right. it is true that the commission, which is bipartisan at the turn of the last century, it doesn't have a lot of constituents today. on the supreme court on the left and right, you have those saying that the law should be struck down -- [talking over each other] [talking over each other] >> if you want to say anything about this notion of the democratic institution were not before we turn to our audience? >> yes, i will make two points. one, i think that to define democracy, system wise, even though a federal judge is not held accountable for his decision or this decision or that decision, there is an ultimate political accountability to the judges who point these people. you can look at the evolution of the court from the mid- 20th century on as a series of actions and reactions that helped -- you know, president nixon ran against politicians to demonize the court -- and there is a kind of political dialect within the democratic framework that is always going on about the court. that is one thing i will say. i often got the question that the supreme court is secretive. they should be more transparency. they are a mysterious institution. but somebody mentioned earlier, wanting the court has going for them is that they do give reasons. the health care case is going to be very interesting. anybody who's going to vote to strike down the affordable care act is going to have to give a reason that is not simply political rhetoric. that will be pretty interesting. whereas in congress, entire antonescu disappeared without a fingerprint. [talking over each other] [talking over each other] >> they exposed the cases that don't commend. they exposed the cases that do come in. >> redhead. >> i want to add a footnote to something that the congressman said. there needs to be in accentuate accentuate --, options. at least one scholar, burton newborn once wrote a really interesting article in which he suggested that because of the more democratic view, state courts have more latitude and they deserve more latitude than federal court judges. both were respective of it, mark function, but also in regards to this constitutional function. i've been pondering it for years, and i don't what it means, but i wanted to say something. enjoy it. [talking over each other] [talking over each other] >> gesture came in to the conversation about local courts, and it seems to me that this panel is uniquely qualified to begin a movement that would be professionalization of what we do in the judicial system. most of the state courts are involved in applying the law to the facts. it is the fact-finding that takes time. it is evidence, witnesses, experts, it is all these things. i remember arthur t. venable from new york city law school. end of the supreme court of the state of new jersey. he had a court that was in disarray, disrepute, and all facts, traditionally inefficient. it seems to me that if we look at it now and about your ability to secure independence for judges, and respect for the courts, and to solve the financial problems, we might look to try to perfect what we do, and better what we do more efficiently and more effectively, to apply the law to the facts that and to find facts and the law. find ways and justice courts. and also in the municipal courts. to actually give the judge what the facts are as been listened to by someone else and that they have been arrived at, so that you can handle more cases than you did before, and it would be review, transparent, it would be the lowest possible level, most people in the country interact with the judicial system. but you could take and enliven a discussion on judicial efficiency and all of our applying a law to the facts. >> judge vanderbilt was known as the dean of judicial administration. he was one of the founders of the field. it is one reason i am so passionate about judicial administration. i think it is absolutely the case that the abstract questions and work of judging has to be done well. but the work of managing the court also has to be done well. particularly with respect to the need for resources. we have no business asking for more resources if we are not well organized and managing the resources we have now. >> thanks to the aba and woodrow wilson for having all of you out here. we have had a very interesting conversation this morning and this afternoon. my question goes to something he spoke about earlier about dna testing and how that clears and has cleared a lot of inmates. there are states that have passed laws or you can get dna testing, even though evidence may exist because that is just the way the law is now. i would like to know what your thoughts are, because i think if you can do it across the board, to all the states, which you actually cannot right now, then you would address, one, you would not be imprisoning someone who is potentially innocent, and it would reduce the overcrowding and the costs of the inmates, because no one wants a jail in their backyard. >> is anyone familiar with [inaudible name]? >> i think it is resources. remarkably, the u.s. supreme court in the cases him a few years ago, held that there is no federal constitutional right to have access to dna. that was the case involving alaska, which didn't want to provide a simple and the the supreme court said even though most states to provide a common the constitution did not give a right to it. your question raises the possibility of federal solutions. could we imagine congress creating a national legislation? even a dysfunctional congress where nothing can be passed and both sides are at each other's throat, first of all, it is not especially expensive. which everyone on both sides agrees a great deal about. it is a basic amount of justice. there is interest in the room, let's try to think about the bipartisan movement, the products are doing good work along these lines, you can actually go to the project and find a lobby congress to pass a law the kind you are describing. >> thank you, who is next? >> let me just suggest that it is naïve to suggest that there is not prosecutorial politics. it may be in part the two, but the interestingly finality in prosecutorial discretion -- and that is going back to the court funding issue and the relationship between funding and transparency about our own inefficiencies in the system. it seems to me we are constantly courting this about how we can be honest and inefficiently art -- partly because there are so many non-efficiency values to which we ascribe. like i said, i would really appreciate the panel talking about how we can convince the funding that there are ways with relatively small investment among not only increasing in [inaudible], but also in efficiency. but also how he can be transparent about our problems without resulting in decreasing funding as punishment. >> one of the things i think speaks to that point -- actually both points that you raised, is this bizarre, strain right now in american discourse, somehow we have too much justice. people just have too many chances and, i think this is some of the dna stuff, too. too many, too much. [talking over each other] [talking over each other] >> i just think it is a sense that we -- i don't think that people really, truly understand what the elements -- the essential elements of a justice system are. the ways in which we have cut corners that create the kinds of problems, i think, that result. that is what i meant when when we said we have political system rather than pull out one piece of it. the dna testing piece is one piece of it. but absolutely. the question of prosecutorial discretion and the impulse to try to achieve high levels of prosecution, you get credit for how many people -- you know, prosecutors are supposed to do justice. instead, the incentives are all towards how many people you can convict. we are operating in a system in which three years we have had a supreme court case in which the supreme court has had to order a state to release prisoners because overcrowding violates the eighth amendment. that is brown versus slater, out of california. you have a case that jeff talked about, just decided a month or so ago, the supreme court said that we have 14 million people who are arrested in the united states each year. and the jail officials have the discretion to strip search anyone they arrest. but it was the weather that is constituted as a threat or not. there is something wrong with the narrative we are telling about justice in this country. and i think it is actually -- it is obsolete harming citizens and individuals in harming the innocent, it is harming the respect we have the justice for the justice system. all of that is actually harming the efforts of justices who do need the resources -- judges who are trying to make improvements and make the court system work better. people are reacting and responding, but until we begin to unpack all of these pieces, you asked earlier if we are in a crisis. we are in a crisis in our criminal justice system. when the things that i described to happen just in the last three years, we are in a crisis. we have to begin to stop and recalibrate and figure out how we get ourselves into a narrative in which our ideals, which, to me, we should be prepared to spend as much as we need to spend can go first and are pierced in the second. [talking over each other] [talking over each other] >> it is not just at the state level. we find out from the justice department that exculpatory evidence we are withholding from defense attorneys and defendants, as i mentioned earlier, about prosecutorial discretion and prosecutorial abuse. that is a very real problem with the number of prosecutors who believe that it is their job to convict. to go directly to what you said, there are people in the country, and i really hope it is very fuel, but i doubt that. people who would take the attitude, of course, they are guilty. they wouldn't have been arrested if they weren't guilty. it really takes some push -- since the argument that there is too much justice, already. just putting into it. i think that is a significant problem in our system. >> do any of you have a sense of where we stand in this guard? sherrilyn ifill describe something flawed and problematic. it is almost leading to a sense of hopelessness. is there a root cause you could identify workplace to discuss that would have the most impact moving forward? >> proportionality in criminal sentencing. >> that has to be advanced through the legislative process. you have to figure out a way to generate a commitment on the part of lawmakers. >> you are right. but i don't want to skip over missed opportunity. when the supreme court had a case last year in which the prosecutor had withheld information and which a man had sat on death row for 14 years, and it was after being released, and retried, the jury liberated for 35 minutes and said he is innocent. this is after he spent 14 years on death row. he then sues civilly, and here is the opportunity to create a disincentive for prosecutors to withhold this kind of evidence. he sued. jury awards and $40 million, a million dollars for every year he spent on death row. the case goes to the supreme court. the record says you can't win that verdict. only because you say that the prosecutors knew that the low-level prosecutors didn't understand that they were supposed to provide exculpatory evidence. that is not good enough. $14 million, wiped out. even though the jury said you deserve this. it is not about a john thompson, although it is about the life of a man that was destroyed by a prosecutor's office. but it is about the supreme court going to take the opportunity to provide a disincentive for prosecutors to do with some prosecutors are doing, which is withholding exculpatory evidence, failing to train new prosecutors in the obligation to provide that evidence did you are right. it can happen with the legislator. but the court can play a critical role also in creating the proper incentive that would recalibrate. >> sometimes it doesn't do that. just to give the court credit, we have this wonderful decision a few months ago, a great decision of the past decade, where the court nine to zero, rejects that we do not have any privacy in public, and you do need a warrant if you're going to track someone when you put a gps device on the bottom of their car without a valid warning. the justices disagreed about the reasoning, but online so that there was a degree of privacy in public. justice sotomayor said we need to re-examine the whole idea that if i surrender data to their a third party for one purpose, abandon all expectation of privacy in it for all purposes. the court could do nothing more to protect privacy than re-examining that doctrine. we are talking about complicated moving parts and legislators in research and stuff. one thing we can do is interpret the constitution. sometimes when we do that, we can protect privacy in a meaningful way. >> justice durham said a simple truth earlier that every first-year law student kws, which is that in being judges, judges actually do make law and the common law tradition. the entire system is set up to do that. but of a supreme court nominee -- if he were to say that in the confirmation hearings, they would be pilloried for arrogance and then a misunderstanding of the justice system and how it works. my point is saying that not only do we have a partisan conversation about the role of the courts, we seem to be having a completely irrational conversation about the role of the courts come in which you cannot say double truth. every nominee that goes up there for a confirmation hearing in every -- and every senator who sits on the other side knows that we have a common law system and the role of judges is to make laws, i am not just venting my question. my question is, is there way apart from partisanship, and whose job is it? i understand the press feels that they have a responsibility. but whose job is it to say regardless of what side you are sitting on, we need to have a rational, fact-based conversation about the courts. how do we get back to having a conversation in which we say, look, this is what the courts do. this is what everyone wanted to do, and this is how they actually function. >> you are right. we can't handle the truth, and your question -- i'm not even sure that people can't handle the truth -- [talking over each other] [talking over each other] we met as you are asking your question, i was filling in the blank with other issues. you can ask the same question as it relates to rational discourse in relation to other things, not just the courts. the reason i made that point is that perhaps we are talking about something that is more fundamental and not just unique to the courts. >> i don't know. >> i'm remembering mickeys comment. i guess i'm a little bit pessimistic about the capacity and the wider polity to have this rational discussion. i am on c-span so i won't -- [laughter] [laughter] [talking over each other] [talking over each other] >> there is an old joke about, it is always safe to write to congress because congress doesn't write back. well, that is even truer of the judiciary, because its own egos is we make her own decisions and we speak our decisions and we don't speak outside of that. that is a very vulnerable thing to this kind of irrational attack. my real question is do you see anyone in society who is responsibility promoting the truth in a rational discussion about this? if the judiciary can't, and a lot of people in politics won't. >> stephen koger. stephen koger has more influence . he admired linda greenhouse do the job better than anyone ever has. when he goes after the court for citizens united, instructed his own pact, when he interviews the 90-year-old justice stevens, he kind of beats them up and display the way and asked him do regret any decision in your locker? and he says only the decision to give this interview. [laughter] [laughter] >> that is part of the equation. >> i fully understand your question. and i actually think that we may be at a tipping point where it may be headed back in the other direction. remember the last confirmation was that elena kagan was -- people don't watch to the degree they have watched. the ratings are actually starting to go down. in fact, even the networks stopped covering. you have to look around to find. they didn't do a double double. he watched it all day and all night. that's the way it used to be. to the extent that it has become a kind of performance, people are getting turned off. i think, you know, we may have reached the tipping point. it would take one courageous senator on the judiciary party -- those who were doing their job -- the confirmation hearing is a job interview. if i was going to interview someone for a job and i said things like, do you eat peanut butter, if i ask a bunch of irrational questions, no one would allow me to get away with that in a job interview. but we do allow this with the confirmation hearing. and i do think the public has had it and has tuned out. i do think that a courageous congressperson simply doing their job could go up there and ask the question and questions that are responsive. it is interesting to me that some of these questions, to me, are critically important. for example, i have a full set of civil procedure questions that i always want to ask. not only because i teach a class, because it is a place where the courts have enormous influence. the roberts court has shaped a lot of help litigation gets managed through this civil procedure division. the questions are never asked. i understand, but if i told you that the cases where the courts have done it, homer versus dukes, etc., they are all cases that are adjusting. people don't focus -- and the congress should be helping people understand what is the real power of this individual have in their hands? what does the supreme court do or the chief justice do with a judicial conference? what is the power to have the power over the body that helps create rules for how litigation is endeavored? they are not doing their job. but i think one or two courageous congresspeople, particularly as the public turns off, could begin to recalibrate us, i shouldn't say recalibrate, because it has was been pretty crappy. but could help us have a better sense of what this job really is about. >> let's have one more question. i think someone in the back has the microphone. >> howard judges coming quarters? isn't a matter of more summery and quasi- summary dispositions? is it a matter of arguments and relying more and more on locker looks in any part of the system? and do i sound bitter? [laughter] [laughter] [talking over each other] [talking over each other] >> i know what at the trial level in the state court, there are enormous pressures on judges, you know, the famous adage justice delayed is justice denied, is true. in the sense that it is better to get a bad decision now you can go ahead and appeal been a much better reasoned decision after the judges had time to consider in a year or year and a half. i think that there are probably dimming situations in the attention and care, and we don't have enough judges to begin with to do the work. at the appellate level, frankly i don't think there is any crisis at the appellate level. i stand to be corrected by people with more experience around the country. but we are such a tiny little portion of it, but i don't think it is an issue. >> linda's comment about the immigration courts, where, in fact, that is a very real issue. whether these cases are getting any attention at all. when you look, one study showed at the administrative level, you divide the minutes by the number of cases, it's like two and a half minutes per case. >> oh yes. a dozen cases a day. these are complicated cases. >> when you plead or you do this order the judge assigns [inaudible name], you pay the money, right? and they're people who can't pay the money. they say they're going to pay the money coming in not being able to pay the money and it results in on arrest. i always wondered where the scale for the comes on. [talking over each other] [talking over each other] >> it is legislated. it is a matter of law in many systems. the money from fees and find go to the general fund or they are preallocated to things like port security, order other things from state to state. there are issues to help people who can't pay. actually, millions slip through the cracks. the question is interesting is that when the crisis hit and budgets started being cut on the state court level, a lot of courts looked at increases in fees and the ability to fund core functions. you know, sometimes you hold your nose and do what you don't believe in. but the notion that the justice system in the united states should be funded by the people who have to come to court and use it, it is anti-democratic of a principle as i can think of. i know of no state judge who believes in the world propositioned. >> that will have the that final thought. i will have to thank you. i should have to pay tuition to subdue. i'm serious about that. everyone does a great job. i want to bring up the president, bill robinson. [applause] [applause] [applause] >> what a program. this has been a very special occasion. lots to think about and lots to consider. this brings to a conclusion our program, the courts and constitutional democracy in america, please join me again expressing our appreciation to john and the distinguished panelists. [applause] [applause] [applause] on behalf of the american bar association, i would like to leave you with a thought after thanking you for joining us in making this wonderful blog a conclusion to her celebration and an expression of our concerns. if we didn't realize it before, we certainly realize now after this discussion, that an independent, fair and impartial, adequately funded court system is the key to constitutional democracy and constitutional democracy is the key to freedom. because no courts, no justice, no freedom. thank you all very, very much. [applause] [applause] [applause] [inaudible conversations] [inaudible conversations] in a few moments, the role of the u.n. in about an hour, senate debate on the future of student loan interest rates. and then inform on cybersecurity. several live event to tell you about tomorrow on our companion network. the subcommittee on monetary policy should bure

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