Transcripts For CSPAN3 Key Capitol Hill Hearings 20140709 :

usually straddles the middle and whose vote takes the middle. he wrote a concurring opinion saying, let's lower the temperature here. the decision doesn't mean as much as my colleague ruth ginsberg with the dissent has said but it's, you know, it's narrower the way justice alito says and like he tried to bridge the rhetoric in the moment more than the substantive issue. >> justice ginsberg is not normally an alarmist and having achieving the goals that bob said might have been part of the reason for the dissent. she saw it the way she saw it and that kind of alarmist dissent, there's history for it. you remember that justice scalia in two big gay rights decisions said, if you buy this, then the next thing you know, same-sex marriage and he turned out to be right. >> somewhat broader question still focusing on hobby lobby, the case involved four separate issues, any one of which could have been determinetive. whether a corporation was a person for the religious freedom restoration act or whether the owners could assert its rights, whether the law imposes substantial burden on the religious beliefs, whether the government had a compelling interest in providing the coverage and did so by the least restrictive means. how do you deal with all that or is that only of interest to legal geeks? can you get all that in your story and how do you try to make it understandable or don't bother? >> i definitely had to get all that in my story and write in part for lawyers and the legal issues are definitely what they're interested in and it's, you know, similar to what other people said. i write for business papers, legal papers. we have a daily business paper in oklahoma city where hobby lobby is located and came out looking differently which went to press a couple days later. but yeah. you have to sort of explain what it means in a way that is understandable and for lawyers and other who is read the paper because it's not just lawyers to understand exactly what the impact of it means because there is a lot of rhetoric and people on the television immediately in the aftermath saying a lot of things and difficult to find out what the law is after this opinion and sometimes it takes a couple days for it to settle down and for people to really analyze it and start coming to some conclusions. >> do your editors give you all the space you want to detail a case like that? >> you know, they always have the power of the -- they hold the scissors so i just give them -- i give them a big long story and they can trim it to their individual needs. but i normally don't get cut off. my stories stend to be in the 1,200 word range. >> at least this one, we knew what that bottom line was and who won, knew who lost. it was relatively easy. about a week before there was a green house gas case where justice scalia starts reading the majority opinion and i was downstairs. you guys were upstairs and scalia very rarely is on the side of the environmentalists so you assume epa will lose and there's rhetoric about how the regulation goes too far and in the written version, about 25, 26 pages in, after saying why epa loses, he turned and said, however, it could be approved against power plants under a different regulation and a different argument. he said upstairs, epa basically won most of this case. but that was a really interesting scramble because a lot of people put stories up on the web right away saying court strikes down greenhouse gas regulation based on what the court seemed to say and then at the end of the opinion, they basically said, well, actually, epa won most of the case. i'm glad you didn't pick it because it was all around a lot at the beginning. >> like the aca decision two years ago. the same thing happened when the chief justice went into all the things wrong with the decision and said, but it's constitutional. you know? after a lot of news organizations reported that it had been -- that it had been struck down erroneously. i thought at least justice alito wept out of the way to lay out very clearly exactly what you knew by page 2 what happened and maybe attempt to avoid a situation like with the first aca challenge where nobody really understood what happened in the beginning because the lead was buried as we say. >> except that, well, i was used to tell people to find out what the majority ruled you should read the dissent first but i think the common thread in all these discussions so far is that there's sort of -- there is some spin going on with the majority saying, oh, this is very limited and the dissenters saying, no, this is opens a big can of worms, and it's a real challenge i think to figure out which is the right, you know, which is the right tone to set in writing our stories. especially, when we have to do it within seven minutes after the decision comes down. but this was also the case in the harris versus quinn, the union agency case that came out where, you know, they stopped short of striking down or agency fees altogether and alito, it was fairly clear that they stopped short of doing that but then, you know, how do you know really what's going to happen next? >> i thought that decision by justice scalia that you were talking about, david, was a particularly good example of what happens at least once or twice a year in that i imagine must present special challenges to the press. here's the summary of the lineup from the end of the court's syllabus in that case. it says, justice scalia announced the judgment of the court and delivered an opinion parts 1 and 2 of which were for the court. chief justice roberts and justice kennedy joined the opinion in full. jous tis thomas and alito joined 1, 2a and 2b and 1 others joined. justice breyer filed an opinion concurring in part and dissenting in port and ginsberg, sotomayor and kagan joined and justice alito concurring in part and dissenting and justice thomas joined. so how do you even figure out -- >> your editor's on the phone moments saying 5-2 or 7-2? >> so what's the -- >> correct answer, 7-2. but -- but -- >> look at what really matters going into it and the interesting thing about the epa and recess opinion case and harris v. quinn on monday, we have certain expectations of how far the court might go, the union one, we knew what was at risk here. the idea that maybe public employees weren't going to have to pay union dues, the whole free rider question that we thought the court was going to challenge. they didn't end up reversing aed in intobood but a set back anyway and you have to figure out what to do and adam was saying that you kind of have to figure out what vote really matters here in the recess appointments, the unanimity of the setback to president obama and his nlrb appointments mattered and the 5-4 rationale is key and work them in both together and for the immediate what you send out as an urgent or to your bosses right away that they can put on the wire and will make a difference to all the readers of all different stripe, you have to really give them one vote and one quick hit. keep revising. >> i would say, too, you know, one thing that we are all lucky about is that we cover the court full-time. and that means that we can really concentrate on the court and go to oral arguments and if you'd been at oral arguments in these cases, these decisions although they come down in a complicated manner were not surprising. i think we probably all wrote sort of a version of it after the oral argument because it certainly seemed clear in the epa case that there was a majority that didn't believe they had the power to do one thing but that they were going to be able to do it some other way. i think we got that feeling after the recess appointment oral arguments, too. and so, one i think big advantage that we have is that we do have that background so that when one of these complicated decisions come down we still know what the arguments were, we know how the court seemed to accept them or reject them at oral argument. >> but this was an odd term in one sense. we struggle after going to an argument about how much we want to predict the result. and often the safest thing to do is the justices seem divided over whether to ban abortion, protest, ban protests near abortion clinics or to allow the police to search the cell phones of people they arrest. that seemed divided. turned out to be wrong in both cases because they were unanimous in both. >> in addition to the front page stories like hobby lobby and cell phone searches, even at the end of the term, many of the cases handed down in the last couple of weeks were quite technical and may be of great interest to a fairly limited audience. for example, there was fifth third bank corp. about whether the trustees of an employee stock option plan get a presumptionive of prudence buying stock in the company that the retirement plan connects to. or, halliburton at what stage in litigation can a defendant in a stock fraud class action can a defendant try to show that the alleged fraud had no affect on the market price of the stock? how much time do you need to spend and can you spend on immerses yourself in the details of cases like that and how much room do you get from your editors or do you want to report the details of cases like that that may be of great interest but only to a small audience? >> so those two cases very different answers. no one with a pulse cares about the fifth third case but the halliburton, we wrote about. had a way to do away with security fraud class actions so you couldn't really ignore that. >> it's a balancing act, right? during oral arguments you don't know in which order the decisions will come down or which decisions will come down together. i'm the sole washington reporter for all my papers and i'm only within person so i covered oral arguments in fifth third because it was an issue for particularly lawyers that could be of interest and when it came down, it came down in a flurry of you know, much bigger, much more impactful cases and ended up not writing a story about the decision and i think some publications may have run ap copy or not cared so much at all because they were so focused on the other cases so i try during the course of the year to pace so that the decisions will come down at the same way that oral arguments will but it doesn't always work out. >> i make sort of a different comment. there are a lot of cases during the term that are not all that interesting but i was sort of struck this year as i every year the supreme court deserves credit for style points of dra massachusetts it's as predictable as heat and humidity in late june. there's a series of big decisions and then the last day some really big decisions that sort of divide the court, divide the whole country. it happens all the time. a lot of people paying any attention like in the health care case, gay marriage case, you generally don't know how the supreme court will rule. it is really unusual part of government deciding something really big an you don't know how it will come out. they decide it with a bang at the end of june. and then they leave the bench and take off for three months and just seems to me, boy, they really know how to do drama. they reserve all the big cases for the very end. i'm sort of thought roberts may send a note in april saying something like, why don't we slow down on the gay marriage case or the hobby lobby? if we release this in may, it lets the air out of the balloon. let's keep that -- i don't know how they do it but there's a really big case at the very end of june and strikes me as congress i don't cover does it wrong every year. you know? they have the state of the union speech in january. the president comes up there. the lights. everybody seems happy. and then about two weeks later, it's clear that, well, we are not going to legislate this year because they go to the floor and one side says, we can't make any deals with the people on the other side because they're unreasonable and obstructionists and don't legislate and by this time of the year, who cares if congress is in recess or snot they're not doing anything anyway but the supreme court really knows how who do drama and presentation. >> david, they're still doing so much drama in the courtroom. we went through a period of people weren't showing up because you can get it quicker online but we have a decent group in the press section and d.c. group in the bar section watching the proceedings which, of course, are not televised and the justices are still playing to that with the dissents from the bench and plenty of back and forth that's giving us grist for drama in the stories. >> it is also interesting i thought this last day a number of people asked me why did alito have both of those decisions and, well, the reason is because they took -- one took much longer to decide than the other. the union case was argued in january. and it took this long to get agreement which suggests that perhaps there was something that fell through, a majority opinion that somebody wasn't ready to go along with. but it just so happened that one argued in january and one argued in march. happened to be the last two cases of the term to be decided. >> there had -- people had been wondering for weeks whether the term was going to end the previous week. on thursday the 27th or whether they would go to the last day of june, monday the 30th. it made me wonder. i remember an article, adam, you did several years ago about how justice black mn's law clerk urged him to postpone the decision in bowers against hardwick from a thursday or friday to a monday because, you know, a story on a friday or saturday newspaper in the summer doesn't get much attention. and i wonder if anybody suspects that hobby lobby may have gotten pushed from last week to this precisely for the style and impact that david was talking about. >> i think that theory would make more sense if they issued decisions on friday and might well get lost in a way but i don't think it applies the thursday decisions which is what they typically do these days. i think it's good pr advice back in the day but i don't think i attribute that to why monday. monday was since the beginning of the term the last official day of the term and no particular reason to think it would be something else. >> okay. joan, you said something a minute about the difference between being upstairs in the courtroom and downstairs in the press office. can you tell us about what that difference is and how you make the choice? >> yeah. and i really am in a lucky position that i have a partner who actually is very fast an handles our on the spot copy, lawrence hurley. he is down in the press room and the minute he can get a copy of the opinion he runs to the terminal and types up what happened very fast and prewritten snaps to go out to the customers. so that gives me a real luxury of being up in the courtroom which when i worked for usa today and "the washington post" i could do all the time but that was before we had to be as fast as we need to be for wire service. so when you're sitting there, you get to hear the justices in their own words tell you what they think is so important about the ruling and you get to see their colleagues react to it an you get to see people in the spectator section react to it so i think it's wonderful drama and plays into what david savage said getting to the nut of what they have done and highlight themselves and what they think is important and justice scalia said in the epa case as we were listening, okay, so the government gets 83% or whatever of they're trying to do, didn't get the rest, so we walk out of the room with that understanding not paging through dozens of sheets trying to figure out what's the nut of it and also just because cameras aren't there we can always bring that into our stories and i think enhance what the readers get so i feel very fortunate to be able to do this. >> but it's important to emphasize the cost. i go upstairs but the cost is the moment they start talking, your competitors are down starls with the hard copy of the decision and they'll talk as they did in the hobby lobby case for half an hour and you are in a courtroom no electronics, editors can't get a hold of you. nervous about posting something without your permission and a real cost to this incredible benefit of having the case explained to you by the people who wrote it and they're not reading their decisions aloud. they're giving a coloek wee summary. >> part of the reason that some media organizations got it wrong with the affordable care act is that they didn't sit through the entire opinion announcement where you hear the nuances, you hear there's two parts to it, one that the affordable care act is unconstitutional on one ground and then it's constitutional on another ground. but the people who raced off with the hard copy got kind of sidetracked. you would think that it would be more accurate if you had the piece of paper in your hand but it didn't work out that way in some instances. in fact, i think there's some thinging that maybe if they didn't hand out the opinion to the reporters until the end of the oral presentation, it might work out better. >> is that something the press gallery wants to ask them to do? >> i wouldn't say -- i would doubt there's unanimity on that point. >> it would be full unanimity if there was. >> maybe a furious concurrence. >> i'm going to interrupt one second. i saw someone walk in with a plate of food from the lobby and guessing that's where the extra food and if anyone wants to -- no? is there some back here? okay. so there's more food if you didn't notice it coming in. >> art, i want to add a postscript about being in the room. i remember bob observing in the aca rollout. don er haverrilli in the courtr with us, you know, don verrilli, assistants, spectators who are keenly interested in this like art and lawrence gold who's very interested in the union decision on monday. and you can see how they react and i remember during the course of the health care ruling, we were both noticed that don verrilli tightens it sounds when the government lost and then loosen up and chief justice roberts says, no, you won. you get a lot and as adam observed, it is a cost if you're the only one up there for the news organization. >> right. there are other times that really dramatic moments especially in the announcement of decision, you are not the only one. one, was for example, the schutte decision, the affirmative action decision, on a day that's a heavily covered case. i want to say cell phone searches. >> aerial. >> on the day of aerial. >> susan b. anthony first which is a real case and then the decision lands. >> and then announce the decision and justice sotomayor gives a first dissent from the bench and it's -- it was actually quite a powerful dissent and it was interesting moment and it's something that like you said, neither broadcast and she did not release -- sometimes justices release bench statements. if you weren't there, you missed it and a lot of reporters were there so when the stories you had this explanation of that, that you normally on any other day if it was a, you know, a run of the mill sort of habeas case or something nobody would have been there and missed it and not be able to see it so there is a value in being there but you can't always be there. >> so in a situation like that, bob, what do you do? do you stay upstairs to watch the arguments in these two important cases? do you run downstairs and file a story? >> i went downstairs because i thought it was a dramatic moment and i thought that it was a case that people were going to be really interested in and i wanted to get something on the web so even though i had thought at first that i would stay and watch the arguments, i decided that it wasn't worth it. it was more important to get a story out on the web. >> and was that the unanimous -- >> i just -- >> -- conclusion. >> i just do what bob does. >> i stayed. i stayed. >> do you have the same time pressure to get something out to your publications? >> not quite as much as some of the folks who need to get something out within the hour. i have daily -- some of the papers i write for are daily and needed to get something out but, you know, the editors also realize i'm one person so i do the best that i can and we all make it work. >> well, you know, you sit there and making so many judgments because i had -- my colleague knows more about business cases and he was going to cover aerial coming second. i said i'll do the susan b. anthony first amendment one and not knowing that justice sotomayor is about to present this great dissent which matters to me both in my day job and in this side project book on her. so after she says what she says and i know it's huge, i'm thinking, i promise i'll stay for the susan b. anthony oral arguments so my editors are hoping for that but i also know i have just observed this big moment i want to be woven into whatever story we're putting out on the michigan affirmative action case and you have to make a series of calculations and what i did is i thought my colleague lawrence hurley will do whatever we needed to do for the first hour and more important to have one of us up there for the relatively important first amendment case from ohio and it was tough especially since the first two rows emptied out completely because the bob and adam and david and everybody else knew it was wiser to run down and kimberly and i knew for our purposes even though it's a tough decision to make and frankly i ran downstairs and quickly typed up what happened in the oral arguments and then a separate story on sotomayor's moment but you're constantly having to make the calculations and some years you might be off in an argument or two and some years you're lucky and all works out but it's nothing easy in the moment. >> you have to make the calculation what's the story that's likely to be on the front page? and the affirmative action decision was, in fact, a front page story and an argument in a first amendment case wouldn't. although it was sure help you write the decision when it came down to have gone to the argument so you lose something and this is all an instance of a general problem for journalists which is that we cover a not very hard working court that does all of the work seven mornings a month and compress into the mornings decisions to hear cases, decisions on the merits and arguments and they happen simultaneously and we have to do a kind of triage to figure out what parts of things to cover. >> the other place we're really covered is as probably all of you know since you're interested in the court is that transcripts of the oral arguments are available usually fairly early in the afternoon. and so, i think that i ended up writing a story about the susan b. anthony case by reading the transcript later in the day. it's not the same as being at oral argument but you certainly get the high points and understand where the justices are coming from so that helps a lot, too. >> and nick already alluded to do but we're in two different businesses. i don't know about kimberly on this. one is that we're serving a website that wants news immediately. not an hour from now. immediately. and we're also working for a newspaper where it's going to come out the next morning and should be more reflective. i do the opposite choice of adam and bob. i stay down stairs on the days of the decisions and listen and get the opinion but i do it basically because of the website. my choice would be to listen to them deliver the opinion but as long as there's a demand for the website to get something up immediately i don't feel as adam said there's a cost to it. you take a half hour, 45 minutes, listening upstairs. so i'm always torn every day thinking i have two different jobs at the same time. >> i wondered this year if the court had -- was showing maybe a little consideration for the press although not as much as if they spread their work around a little bit more -- >> the answer is no to whatever you're going to say. >> never more than three opinions a day in june and throughout the term and days in other terms four or five opinions. do you think that's just because of their own convenience or do you think they actually maybe care about the press and their staff? >> did ahead, kimberly. >> i concur. i don't think it's anything to do with us. it's much more helpful if they did deliver a bunch of opinions in the cases we didn't care about and spread out the big ones which they didn't really do so clearly we weren't in mind. >> so if you look back just a couple of weeks ago, we had a week of two decision days in june already where they basically cleared out every dog. and saved every big case and you couldn't help but get the final days having basically two big decisions a day so they were not particularly inclined to help us. >> we have spoken some about how you prepare in advance to cover these cases. going to the arguments, reading the briefs. do you guys do anything on the back end in terms of following up about the consequences of the case? is anybody going to try to track how many companies seek exemptions under hobby lobby or how many local towns around the country start having christian prayers at town council meetings in the wake of town of greece? >> sure. no. i definitely will be keeping an eye on that one. we were discussing a little bit at the table before the discussion is one thing i'm not doing this year which i've done in the past is a wrap-up, just sort of what the term was this year because i think for me and our publications after hobby lobby and the buffer zone case and the really big cases in the last couple of weeks, it's not really necessary at this moment but i will do exactly what you said is over time revisit and see what the impact of these rulings are on the ground and always takes a little bit of time for that to happen. and also, do some previews of what's coming up. next term. and keeping an eye on what's bubbling up, what the big cases might be next term. one of the things i know a lot of people are looking at is whether the state law bans on same-sex marriage will make it to the term next year and where those are and things of that nature but, yeah, the summer's a nice time to be able to think about the stuff and do some analysis in a way that you can't do when you're under the tight deadlines of the -- when it's a decision day. >> i plan to talk a little bit about next term as we get closer to the end. but let's hold that off for a moment. one of our panelists mentioned a few minutes ago about how you're not allowed to have any electronics upstairs in the courtroom. but one person who was not a reporter did get some electronics up in the courtroom one morning this year and, tony, were you there to -- >> i actually was not. it happened during not that newsy oral argument but it was on february 26th when a young man, protester stood up during session of the court and started speaking to the justices and it was about the mccutchen case, upset about that and said money is not speech. it happened before. it happens once every five years where there's an outburst in the court but what's unique about this is somebody else with a pen camera or some other device took a picture of our video of kyde newkirk making his statement and that ended up on the internet within a few hours and another piece of video did, too, from another time. and it was really -- it was literally the first time since 1937 that a -- a photo of any kind of a -- the court while it was in session had been published anywhere. it's such a rare event. >> and it was amazing in the room. i happened to be -- it was a patent case they were arguing. i happened to be there and like the equivalent of like a -- five semis crashing into each other and so orderly and the decorum is so well maintained and i think a couple of us could hear chairs crashing because the police had trouble getting the fellow. he was standing in the back and he was actually in the middle of the row and so they had to knock over a couple of chairs to actually get to him and the justices were stunned and all it was was, you know, he was as tony said complaining about the free speech campaign finance cases saying -- he said corporations are not people sort of thing and able to -- what do you think, about seven sentences out before they actually -- >> he was pretty good. i thought he was a pretty good advocate. >> he got people's attention. and the justices didn't say anything from the bench but boy did things change up there. the security we go through now is much different. >> it happened all very fast, too. he said the few sentences. you saw the, you know, the marshals, the police go over. he seemed just to go down. he seemed to -- just like a trapdoor. he was there and then he was gone and then reassembling the tables and right before an attorney giving the rebuttal argument and the chief justice said, counsel, you have four minutes and went on after that momentary breach. i was just talking to my editors in the week before that happened although, you know, nobody can bring phones or any other recording devices in, visitors have to check them in a locker, you know, nowadays people have smartwatches and, you know, there are those spy pens and everything and they never check for that. and i was saying, i'm surprised that no one's tried to take videos or record things and not more protesters you have to just stand in line and get in the court. i'm surprised there isn't more and literally within a week or two of that it happened in a big way. >> you think it's the chambers of wizard of oz and a photograph of this place. >> well, and there were two footnotes to this. one is that the audio of the oral argument was later redakted to eliminate these words spoken by this young man. and the explanation was, well, it wasn't part of the regular proceedings. that's all we record. the other one is that the kyde newkirk was prosecuted under a law that prohibits harangues and 0 rations at the court. and one wonders why justice scalia hasn't been prosecuted already. since he's given many a harangue. but anyway, he was -- i went to the trial at the d.c. superior court and this judge clearly thought this was not a big deal. no jail time. and he really wanted the u.s. attorney to drop the whole thing. the lawyer for the court, the general counsel of the court, ethan tory was there and very much involved in the hallway negotiations over this, and anyway, newkirk was -- he was sentenced to time served. he had actually been held overnight after the incident and but that was enough punishment. the judge felt. >> i thought mccutchen is one of those -- several cases like that this term, a good news case but for a select group of people. i don't want anybody to raise a hand here but there is apparently some people in the country who feel that their free speech rights are stifled if they could not give more than $123,000 this year to the candidates for congress. now, as i say, you can some of you fit this category can just smile. but don't identify yourselves because now you have a free speech right to go to capitol hill with a check of $3.5 million and say to john boehner or nancy pelosi i want to support the entire team to the max and so that's what this case was about, the idea that thankfully we now have a free speech right to give more than a couple hundred thousand dollars to members of congress. now, that's good news, right? >> so let me give a more benign interpretation of the case. nobody disputes there's $2,600 limit per election cycle and can't give more than that to any particular candidate but there's a separate law saying once you've given $2,600 to the first 15 or 16 candidates, the 17th is deeply corrupted by the check. that's not obviously a corruption interest. >> no, but i do think my voice would be heard if i took the $3.5 million check up to the hill. don't you? i mean, and the opinion john roberts says, there's -- there's nothing that allows congress to stop the use of money just to buy influence. buy access and influence. you can't do a bribe. but you can use money to buy influence because that's just part of being a citizen. i think that's an interesting thought. so if you have your $3 million, you can buy influence, no corruption there. you're just having your voice be heard. and i actually think you have a lot more if you actually care about an industry or say, you have a lot more influence if you can make $3 million to the speaker of the house than if you give $2,600 to elect different members. what good is that? >> speaking to the aclu, there's lots of other ways to buy influence than making campaign contributions so we can debate this and we will for the next decade. going back for a moment to the question of electronics in the courtroom, another place where that has become an interesting story connects to scotus blog which does a live blog which i'm sure many of you watched sometime in the last couple of weeks and yet they're not upstairs in the press gallery and not even down stairs in the press room where the folks on this panel could be there. they're sitting in the cafete a cafeteria. and i wonder if someone would like to tell us a little bit more about why that's so and what's going on with them trying to get equality with the rest of the press gallery. >> just to clarify, art, the legendary wild dennison has a press pass and issued through a public radio station in boston and this is in part an academic discussion for the day we hope never comes of lyle retiring. >> and so lyle is in the press room so he is able to take the opinion and go back to his phone and on an open phone line he's then able to feed the information to the live scotus blog feed that others are managing. so that's how you -- that's how he is able to convey this to the blog. but you're right, tom. tom goldstein and some of the others are encamped at the cafeteria for part of this process. i think they wanted -- they wanted a press pass for two reasons. one is to -- for the -- they wanted a senate press pass or congressional press pass so they could cover supreme court related events at -- in congress. you know? budget hearing or confirmation hearing. but they also wanted to get a press pass from the congress because the supreme court traditionally sort of honors those press passes and can give a supreme court credential to somebody who's had a congressional credential. anyway, to make a long story short, they were denied by the senate press gallery which is a -- the standing committee of correspondence made up of media representatives, reporters. and they were concerned and it's a legitimate concern in many instances that they don't want to give credential to somebody, lobbies congress. they want to have the press corps tb somewhat independent and to have integrity in that way and they -- one of their reasons for denying the pass to -- the credential to the scotus blog is they felt that litigating before the supreme court and tom goldstein who's the publisher is -- argues before the supreme court quite often, they felt that litigating before the supreme court is a form of lobbying the federal government. it's kind of a novel thought that actually arguing before a judge is a form of lobbying but i guess since you could view it that way. so they were denied. i think a lot of people -- i think it's probably not unanimous on this panel, but we feel that scotus blog, while it is unique and not all senses a journalistic organization, the proof is in the pudding. the product it puts out has so many benefits, so journalistic in so many ways and is such a public service that a process, credentialing process shouldn't exclude scotus blog. there has to be a way to redefine the criteria to accommodate something like scotus blog and there's many, many business models that media organizations are using now that are different from traditional methods and i think there has to be some accommodation of new forms of media. >> i think the question tends to muddle two different areas. scotus blog may or may not satisfy every norm of journalism but that's the wrong question. the government is allocating access to the public institutions and the only grounds to make the distinctions are contract neutral, motive neutral. it should ask whether it's a proxy for the public for access to allow citizens to see their government at work, particularly in a setting where there are no cameras so i think as a 1st amendment, very hard to understand why scotus blog doesn't have a credential in either place. >> any dissenting opinions on that issue? on the panel. i guess not. joan, you mentioned earlier that you're currently finishing up a book of justice sotomayor. why don't you tell us a little more about what that's going to look like and i'm particularly curious, have you spoken to her about schutte since that decision about the dissent and whether she feels it accomplished anything? >> i have spoken to her many times during the course of doing research for this book that's coming out in october. and it's before and after schutte, in fact. and it's unlike the scalia and o'connor biographies. this is more of a political history of how she ended up on the court and i thought i'd talk about the trajectory and rise of latinos in america and she gave me a good story of the last five years on the court and the end of the book does focus more on her as a justice, her on her own book tour and what a public figure she's been. and everybody's commented on the fact that that schutte dissent was her first from the bench. it was a big deal. she thought it was too much of a dramatic move to do an oral dissent but decided to do it in this case and i know she -- it was evident in that room and from everything else she said since that this really mattered to her and she wished that she had been able to persuade her colleagues and it was really not even a close call. there were only two of them in dissent. justice sotomayor joined by justice ginsberg. justice breyer did not adopt the reasoning of the majority that held this ban from michigan but he did vote for it and the fourth liberal justice elena kagan was out of the case and some felt that justice kagan and formerly was a solicitor general and had a hand in some lower court litigation on this probably was relieved in part to be out of the case because it was a very thorny issue, very difficult issue and certainly inspired passions among the justices as played out in that room that morning, so yes, art, i have talked to her and it will be in the book. >> okay. i'll read the book. there was one sentence in her dissent that particularly caught my attention after going on for eight or ten pages about the benefits of affirmative action and the great decrease in diversity that has been the result of anti-affirmative action legislation or constitutional amendments in places like california, she then has a sentence and says, to be clear, i do not mean to suggest that the virtues of adopting race sensitive admissions pol y policies to influence the court today and that's the first time i remember someone writhing more than a passing sentence or two about topic and saying it doesn't make any -- we shouldn't think about it in connection with the decision i'm criticizing. does anyone remember a situation like that a justice says basically i'm not writing -- what i told you is not relevant and needed to say it anyway? and do you think there's anything inappropriate about that? >> the union case just two days ago has a ten-page long exit jesse helms and then ends with never mind. >> i think what was so interesting about that dissent by justice sotomayor is, one, it's very sh very personal and why i think it got so much attention, and two, because it sort of directly called out the chief justice and his famous line from a few lines earlier that the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. and unless i have that backwards but i think i have it right. and so you know it was very clear what she was talking about and then the chief justice felt that he needed to respond to that and so he responded to that, too. and so, it was, you know, i thought a very personal moment there at the court where you saw these people who disagree about something quite strongly wanting to get that view out there. i thought it also -- this year we saw as a number of us have written about an interesting thing with justice sotomayor writing more and i think being much more comfortable in dissenting on her own, writing separate things in decisions and in that way she seems very different from the other obama nominee to the court, justice kagan who does not do that so much. justice kagan writes some very tough dissents but they're joined by everyone else on that side of the issue. and, i thought we saw a real difference between the two of them this year in the way they handled those things. >> yes, i would like to put a plug in for elena kagan because it seems to me young law students, she is a terrific writer. i don't know of anybody that writes opinions so readable as -- do you remember an opinion she has a paragraph saying stop and dog ear this page to come back to this and gives you guidance. she is a terrific writer. really smart. terrific questioner in the courtroom. she has a good sense of timing as to when to ask questions. she seems to be a real inside player where justice sotomayor seems to be a much more of a public figure. she goes out and talks to groups and is a very warm, engaging public figure. i think justice kagan in the more important, influential figure within the court. >> i think if i remember the scotus blog numbers right but correct me, this is another year kennedy in the majority most and trailed by the chief justice and reagan was third which i think is new. >> that reinforces the inside player part, too. she sort of knows how to work the nine. >> and so, you've now written books about justice o'connor, justice sotomayor. is justice kennedy scratching his head and saying i'm the most important justice on the court, i'm in the majority most of the time, why isn't someone writing a big about me. is anyone planning to? not i you can say. >> not me, no. >> i mean, he's -- here he is, you know, the new hero of the gay rights movement, the man probably to bring same-sex marriage to the united states. strikes me as curious that he is not getting attention in a personal way like that. >> i think he is. i remember, you know, he gets magazine profiles and we have all done our versions of the kennedy court. you know? as we all know, though, to sustain a book you want someone who's life story tends to be broader than just what he or she is doing on the court. sandra day o'connor offered us all that and so does justice sotomayor and probably right now the seeds of a justice kennedy book are probably in some academic's mind. i don't think he'll be denied. and especially given that when same-sex marriage returns to the supreme court as we expect it will next term, i can't imagine anyone other than justice kennedy to take the lead on that. there might be another moment to talk more about him. he turns 78 this month so he'll -- which in supreme court years is quite young. so he'll be with us, probably with us for another five, ten years for now. >> i was at a seminar of the court and people talking about the kisses and what was coming up and someone said i want to be the first one to say it all depends on kennedy. and that is sort of a supreme court reporter's burden in a way is that how do we keep finding new ways to say that it all depends on kennedy because as you point out, it really does. and there's no way around it. >> but you would be surprised how many legal okay demonstrates get a call from a major newspaper covering the supreme court and think they're imparting chin stroking wisdom saying i think it all comes down to kennedy. >> right. >> i want to remind the audience that i'll be opening the floor for questions in about ten minutes and so if anyone wants to be thinking about a question, now would be a good time. and let's talk a little bit about the future. joan, i understand you have been following the same-sex marriage case that is are percolating in the lower courts. what's your prediction about that? >> i think it easily could be taken up by the justices in the next term. we just had the first ruling but the 10th circuit in denver following the succession of saying a ban should be struck down and in that case of utah. we had more district court judges rule recently so i think it's easily marching toward the supreme court. the big question is, will there be a split in the circuits? we have zero split. every court that ruled on this since last year's decision in windsor has been the same, that these bans are unconstitutional. we still need to see how things play out in more conservative jurisdictions, for example, the 5th circuit with a texas case before it now but i think even without a split, the justices will have some interest in taking up the same-sex marriage question. i don't think they leave it hanging out there with most of the circuits approving it but not issuing a national constitutional ruling so i'm hoping for our benefit, you know, just because we love a big issue and because this thing is percolating up faster than we would have ever expected last year at this time that it does indeed come up and next year on the panel, art, you are asking us how we wrote the same-sex marriage story. >> the 6th circuit next month has a day set aside for same-sex marnl in which every state in the circuit has a case before the appeals court and so i think it's going to be a solid day of hearing that issue, so it's clearly moving around in some circuits faster than the other. the 4th circuit could rule at any day on virginia's case in which that ban was struck down. so, it's moving. i think the court is surprised at how quickly it's moving and how fast it could come back to them. >> an interesting thing about those appeals that and i know some of my colleagues wrote about is actually after the schutte action, the affirmative action ruling, there was a flurry of filings in a lot of these courts because of the reasoning that, look, even if it's a difficult and, you know, highly charged issue like affirmative action, the states have the right to decide, you know, to decide on these issues and as soon as they said that, of course, everyone in the states filed supplemental briefings saying it's up to the states to decide what the definition of marriage is so it put a new twist on the cases as they were going forward and it's interesting to see a circuit split and part of the reason that causes one. >> that was written by justice kennedy. >> yes. it was written by justice kennedy. >> are there among all these cases that are moving up, are they all basically the same or are there some that are more favorable to the same-sex marriage claim, some that are less? >> i think some cases just talk about recognition of marriage performed elsewhere, where it's legal. but the arguments in the case is the reasoning in the opinions are just remarkably similar and every one of them mentions justice scalia's dissent from the marriage case last year's in which he sort of wrote down, here's a blueprint for how you challenge a state's ban based on what the majority has now said and it's worked out for them. >> they're all the same arguments. what is fascinating to watch the blood sport among the lawyers that want to represent the winning side. >> and how's that going to go? any idea? no? >> how will -- in the end, the supreme court you may be surprised to hear a lot of stuff in the end is decided by a coin flip. >> there's about 40 cases that have already been granted for next year, not including same-sex marriage. have any of you had time to take a look at them and have any thoughts about other cases we might be discussing here a year from now? there's one redistricting case from alabama where there are minority plaintiffs complaining about gerrymandering, not their favor. and case that was in the court a couple of years ago looks like it's -- i guess is coming back which has to do with whether congress can direct the secretary of state to consider jerusalem part of israel on a person's passport. any predictions about what the court's likely to do in those? now's the time to ask for questions from the audience? >> we all look forward to digging into those briefs. >> exactly. >> i we would agree the court so far has not exactly put together a blockbuster docket for next term. but, you know, there's certainly cases out there. we talked about same-sex marriage. you know, it's surprising to a lot of us that the court has not accepted a case involving gun laws that go back to -- try to find out exactly what the court meant in the haller decision and everything that's come up before the court, the court has turned down. the gun rights folks are getting really annoyed and irritated by the court's refusal to take another one of these cases. and, you know, it's all speculation but i speculate not long ago that it's because they aren't sure about what justice kennedy would do in them. i think each side is a little worried about bringing up one of those cases without knowing how it might come out. and so, there is a surprising but uneasy feeling. it feels like at the court on all of these cases that raise a lot of interesting questions about whether there is a right to carry a gun outside the home or just to have it inside or who gets a permit for that. and the court so far has not found a case that it's willing to accept. >> i kind of like two upcoming cases, art. one is about how the first amendment applies to facebook posting. that will be fun to write about and the other is about whether muslim prisoners have reduced rights to wear beards. we'll find out if people have rights, as well. >> we've got about 13 minutes left or so. does anyone in the audience have a question that they would like to ask? susie? >> actually, one of the things i found interesting in the broadcast media coverage of hobby lobby was in the one minute they had -- sentence or whatever they get their -- whatever they have their sound bite was the characterization that all the women justices voted in the dissent. the insinuation being that it was, you know, a gender-based decision which is a feminist i find a little offensive. and then also, sort of the second insinuation was that it was really a women's rights decision as opposed to a decision about the rights of corporations. and i noticed that in the written media it wasn't so characterized. so, i actually have two questions. one is for you to comment on the difference between broadcast media coverage where a lot of the americans get their news and written media and then secondly whether there really has been a decision that you have seen where you think it's genuinely been influenced by gender. >> on the first issue, you should rely on the written press and not the -- somebody has a better answer than that? to the other question. >> the three women on the court are the three most liberal members on the court and the second point that matters, not the first. >> do you, though, think it's inappropriate to mention? i don't know what the right answer is. what do you do on the four dissenters are as you could say, four more liberal members of the court. it's also the case that three of them are women and i think i did both in different versions and wasn't sure to mention it or not mention it. >> but, joan, maybe you remember. i feel like justice ginsberg made the point that when justice o'connor was on the court they were different in so many ways, one from arizona, one from brooklyn. one republican, one a democrat. and yet, they were together on all the women's issues. so she seemed to think it mattered. >> she did. in fact, she would always say that they're coming to it from the point of a wise jurist and inflicted by the influences and i have to say in my story on monday played up the women's rights background of ginsberg because she talked in the dissent from the bench and in the opinion at length about reproductive rights and been to women's participation in the economy and i felt like that was a good angle to talk about even though i frankly did not say -- i did not point out the overall women factor vote just like i didn't point out even though there was some pressure from bosses, the religion factor vote. the five justices in the majority are all roman catholic and in the dissent there were the three jewish justices and one roman catholic and went back and forth to put in or not and i thought it could, frankly, detour some readers and make them get off on something i wasn't trying to force the issue on but i think you can't help but avoid the kinds of sensibility that some of the women justices will bring to this, but i agree that it's overall a matter of ideology rather than gender. >> i thought you saw, too, in that and what i heard from women's groups later was that justice ginsberg dissent pointed out that birth control is the health care and majority opinion thought it was a subset of health care and something sort of set off by itself. and i thought that those were two different feelings you got from reading the dissent and reading the majority opinion. >> was it a decision about health care or was it a decision about religion? david, i think it was your story saying maybe it was the most important decision on religion in recent years. >> well, it's been many years since the courts decided any case involving a sort of religious freedom. most are establiregarding the establishing of opinion. justice scalia said we're not going to grant religious exemptions to general laws under the 1st amendment and then we have had the religious freedom restoration act but that -- and then the supreme court in 1997 limited the religious freedom restoration act and said it didn't apply to state and local laws and really knocked down a good part of that law so it actually wins by -- there are very few statements on religious liberty for the last 20 years and i can't think of any decision as close to significant as this one. >> any other questions from the floor? yes, sir? a mike coming to you. hang on one second. >> if you look at the stories that were read at the beginning, each of you is not just reporting on the -- what's happened, but on the implications of what's happening and the implications actually color the public policy debate. and how do you decide how far to go in that portion of your stories? >> well, i think for one thing it's often hard for us to know that day. you know, i think that this case is a good example of one that's going to play out for a long time. you've already seen that the court has sent back to lower courts some cases that involve businesses that don't want to cover contraception at all. any form. and they've sent those back and said, take a look at this with what we have said. but the most natural thing and the questions that you get from not just editors but anyone you talk to about these decisions is what does it mean? what's it going to mean for people? how's it going to go? and so you i think do that to sort of the best of your ability judging from what's written down there and then say, when you don't know how it's going to play out. or what the decision doesn't say or what the decision is careful to say. we're not deciding. because that's really the only way to do it, i think. >> yes, ma'am? why don't you wait for the mike which should be close? >> i hope you have time for two quick questions. one is, since harris v. quinn argued in january, what took so long and what was going on behind the scenes to cause it to be decided in -- at the very end? what was going on behind the scene? >> based on the argument it wasn't clear that justice scalia was going to be with the majority as he turned out and must have been a lot of negotiation about that passage we mentioned before about whether a key 1977 precedent should be struck down. >> and also, somebody mentioned it, you know, justice kagan's mention about long segment about starry device sis and suggested it's possible the majority at first was going to strike down the abood decision and somebody got off the train and possibly could have been scalia. >> she liked what she had written so much and left it in the dissent. >> right. >> because two years ago the knox decision sort of forecast trouble for abood and if we had -- there's a theory about the court these days that there's a lot of decisions that are one-two punches. the first decision trashes a precedent and then the next decision overturns it a couple of years later. and if that's the case then the knox decision was the one forecasting that the end of abood and it didn't deliver, they didn't deliver. >> yet. >> yet. >> and quickly, i have to say i'm quite jealous of the fact that you all are in the courtroom and witnessed justice sotomayor's dramatic dissent. so, wondering, what do you think -- how do you feel about cameras in the courtroom? >> this is tony's issue. >> oh, i speak too much about it but i'll just -- it's just seems so obvious that, you know, it's crazy in this day and age that that medium is excluded from the court and that unlike the other -- almost every other institution in america is open in some way or other and there's just no rational reason why they're doing it but that said i don't think it's going to change. i don't think there's the court is going to allow cameras unless they're dragged, you know, kicking and screaming. >> yes, ma'am? >> yes. >> wait for the mike. >> all right. >> thanks. >> just in the last few days as all these major decisions of the term have been coming down gallup poll reported that the job approval of the supreme court is doing is around 30% now, the lowest it's been in decades. so, as astute observers of the supreme court, i would like to ask you what you think the cause of that is and what do you think the implications of public disapproval of the court might be? >> among the causes is that there's a distrust of government generally and those numbers rise and fall with all of the branches together. they tend to fall when the court is perceived to be a political institution, whether the evidence for that is strong or not. and i think the implications for the court, you know, case by case, year by year, actually are fairly small. >> there's an interesting thing of polling about the court, as well, which is that the people who tend to approve of the court's performance are people who are in the party of the president. and that the court even though it's independent is perceived to be associated with the president when's in office at the time. perhaps because they often are -- have appointed the latest members to the court and gotten attention that way but if you go back and look it's a strange sort of connection that democrats now will approve of the court more than republicans do for instance right now. that was different when president bush was in office. >> adam, do you think the evidence for the court as a political institution is not strong? >> i don't think it's especially stronger than in years past. the anomaly on this court is for the first time in american history all of the republican appointed justices are more conservative than all of the democratic appointed ones. that sounds like it should be normal but, in fact, in closely divided courts it never, ever been the case and just think back a couple of years to justice stevens a republican appointed by president ford. justice suitor appointed by the first president bush. there's lots and lots of examples of people overlapping and not doing what you think their appointing president might do and now we have a court that's divided not only ideologically but by the partisan affiliation. >> i also think there's a sense that with each new appointment on the court it's been a few years since we have had one but there was a flurry of a period it felt like they were just one every year but that process it seems has become so much more politicized. the past supreme court justices confirmed by the senate nearly unanimously. i don't think that will happen again and it's a political process to put them on and i think people expect that to continue based on the spectacle around the appointments. i know that was very much the case with justice sotomayor and some of the other justices so i think that also colors the perception whether or not it actually plays out in the jurisprudence. >> think back on the nominations of current justices, my colleagues will correct me if i get the numbers wrong. i think kennedy and sken gentleman unanimous. breyer eight votes against. that's not the world we live in. >> and on that note, it's 2:00 and we'll hope to see you all back here next year. thank you. [ applause ] wednesday the heads of fema and custom and brorder protection testify about security challenges at the u.s.-mexico border. live coverage of the senate homeland security hearing begins at 10:00 a.m. herein on c-span3. and on thursday, the senate appropriations committee holds a hearing on president obama's request for emergency funds to deal with the flood of unaccompanied children at the u.s. southern border. you can see that hearing live thursday at 2:30 p.m. eastern here on c-span3. now you can keep in touch with current events of the nation's capital with any phone any time with c-span radio on audio now. all 202-626-8888 to hear coverage, public affairs forums and today's "washington journal" program and every weekday listen to a recap of the day's events at 5:00 p.m. on "washington today" and hear audio of the five networks public affairs programs sundays at 5:00 p.m. eastern. call 202-626-8888. long distance or phone charges may apply. next, solicitor general donald verrilli discussing his role. his remarks part of the annual seventh circuit judicial conference in chicago. it's 50 minutes. >> diane, as i recall that was longer than the introductions frank used to give me. no, it is such a pleasure to be here. it's always a pleasure to come. you schedule these dinners at the worst time of year. i have to say. but i wouldn't miss them and so thank you for inviting me once again. and thank you, diane. this is, of course, diane's -- my -- diane's first year and my first dinner up here with diane. and the word back in washington is that she already is doing a pretty awesome job. am i right? [ applause ] not that everybody doesn't miss frank easterbrook and the extraordinary service that frank easterbrook did for so many years and thank you again for that, frank. but -- [ applause ] but thank you, diane, for taking over this responsibility and doing everything that you're doing. you know, i always -- i worry sometimes a little bit when i start thinking about this event. i start thinking what will i talk about? they want me to say something. but you guys always invite such great people like my favorite people and so then i just say, oh, that's okay. i'll just introduce don. just -- just like i think it was last year, introduce the chief justice or justice stevens and whoever and so that's my task tonight. and it is really a pleasure because there is no lawyer that i respect more than don. and it's great to be able to share a little bit with you tonight about why that's so. now, sometimes people ask me, you know, it's like actually impossible to see your notes up here. impossible. i mean, is there a light or -- like -- what do i -- sometimes people -- i hope you have your speech committed to memory, don. sometimes people ask me, they say, do you miss being solicitor general? it's great. we're back in the 17th century. so people say to me, do you miss being solicitor general? and i think, are you kidding? are you kidding? did you see what we did to general ve rilly last month which is sort of true i have to say when you're up there as solicitor general, happened to me, it's happened to don. when you're up there as solicitor general, you get treated a little bit like a punching bag. or a pin cushion or pick your metaphor, but sometimes it does not feel all that good. now, you probably know the -- i don't know. the high point, the low point of this, you know, is the health care case, right? everybody knows about the health care case. and don had a little bit of a sort of coughing episode at the beginning of that case. right? people know about that. people are afraid to laugh because -- people are afraid because it actually went a little bit downhill from there. not because -- not because of anything don did. just because of, like, man, were we tough that day? i mean, just question after question after question for whatever he was up there for i think it was an hour that day. and i do not think that we let him get in more than two sentences in a row. for an hour. just bombarding him with questions. and, when you're on my side of the bench, you sit there and you kind of look at it and you think, man, that is a bad job you got there. and i am really glad i'm not doing that anymore. and you know, but here's the -- it's true, don. this is true. we only do it to the best of them. that's what i used to tell myself when i was solicitor general. and i used to tell myself this a lot because truth be told the chief justice has eased up a little bit between the transition between me and don. no, but it is true, actually, because the 0 lis or the general argues the most important cases, the cases where there are often the fiercest views, the fiercest disputes. so cases which really matter to folks. and then, you know, don because he's so excellent and, you know, let's go back to that health care case. do we remember who won that health care case? right? [ applause ] and he won it really for a reason and this is true of, you know, i asked my clerks to come up with a list of all the cases that don has argued and i was looking at them on the plane. and i was thinking, donner ha vi won every case he possibly could have won. i was thinking he won a couple that there was no way i thought he could have won. and so, you know, he lost some. but they were ones that he was never going to win. and, and that's saying a tremendous amount, that don always figures out whether it's in his -- in his oral arguments or in his brief, he always figures out how to present, you know, the arguments that if the government can win those are the arguments that are going to get to a win for the government. and that's an extraordinary thing looking over that list of cases and thinking, he won every one where it was even possible that the votes were there. and, you know, the reason -- as i was saying that we give him a little bit of a hard time is the disputes matter. but also, because you know that he is up there and if you don't give him a hard time, he's going to make some headway. so, so you better give him a hard time before he starts making that headway that maybe, maybe, you know, some of the justices don't quite -- don't quite want him to make. now, i have known don for a long time, not just since i've been on the court but probably not a long, long time. i know don better than any of the other justices. we served together in the obama administration in the department of justice. and in fact don, the first time i really met don was when don was vetting me for the solicitor general position. you know, he was the person who i came to washington to see and laid my whole life bare and he was sort of exploring any problems that i might have, any difficult issues i might face. and, you know, can i say that having been through this a number of times, one is not guaranteed to love one's vetter. in fact, sort of the opposite. but don treated this job with such diplomacy and such tact and such sensitivity. and such skill. there was nothing that don did not learn about me. i feel often uncomfortable talking to don, actually, because i'm talking to him, i'm having a conversation and he's thinking about what i did when i was 13 years old or something like that. but that's how i first got to know don. and then when i arrived at the justice department, don was already there because i had to go through a confirmation process. so don had been there for a few months and don himself did not get like a highwayty toity job right off the bat. don said -- my clerk showed me a newspaper article where he said, said, verrilli said he would have taken any job including sweeping the floors to work in the department of justice. that's pretty much what they gave him. it was like, you know, assistant, asis tasn't, deputy, assistant to the assistant attorney general. something like that. but, you know, don took that job which was so beneath like the kind of lawyer don was and the kind of reputation that he had in washington which is glowing, glowing, glowing. i mean, you walk around washington and the washington bar and it's like everybody's favorite lawyer and everybody's best lawyer is don verrilli. he went in and he took this job that was really not all that much of a job because he just thought he wanted to do public service. and i mean, it's actually, you know, when i was dealing and think about lawyers who were great role models for students and why they're great models for students, you know, it's people who manage in all that -- you know, in their professional lives, in their careers to combine private lawyering with public service, to always have a sense no matter where they are that there is a way to give back and certainly that was true of don. that when he was at jenner for many, many years, you know, he did every year like clockwork 10%, sometimes more, of his hours were pro bono hours. he did these extraordinary death penalty cases some of which took more than a decade to complete that were emotionally draining, i'm sure. in ways that i can't even imagine. and then he decided, you know, after however many years that it was really time to devote himself full-time to public service and he didn't really care whether he was going to be sweeping the floors or whatnot, that it was time to do that and so he went into the department of justice. but he came in in this sort of junior role and when i walked in the department of justice it was about three or four months later and he had become the department wise man. it is like everybody in the department of justice -- if you had a problem, if you had a substantive lawyering problem, if you had a personnel problem, if you had just like i can't stand the fact that, you know, the fifth floor is trouncing the third floor kind of problem, i mean, everybody just found their way to don verrilli's office. i used to think, like, does this guy have any work to do because he was sort of playing psychologist to the entire department of justice. and playing legal advise tore the entire department of justice. so the people would go to him saying i have this really hard problem. how do i do it? that's what don verrilli is. in addition to being an extraordinary lawyer, he has these incredible personal skills and he is an incredible problem solver. and, and he has this sort of total professionalism and integrity that, of course, the best lawyers have. and i see that all the time. i hear about it. you know, i was sg myself and i got to know the folks in the sg's office pretty well, and still talk to them. and i sort of hear stuff about what's going on in the solicitor general's office and i have to say i get sometimes a little bit envious because everybody in the solicitor general's office talk about don like they have never seen his like and i kind of think, well, what was i? you know? chopped liver? you know? but the way that the people in the solicitor general's office feels about don is such a testament to what leadership can be. and then, in the court we see not only month in and month out his fantastic lawyering skills, but also, this kind of consummate professionalism and integrity and i just tell you one small story which was don argued a case called clapper versus somebody or other and i guess it was clapper versus the aclu and it was a case where the wireless surveillance program was being challenged by the aclu and it must -- people who could not say that they had themselves been tapped and the government was arguing that they had no standing to bring the suit and this was -- this was an argument that don made that i have to say i was giving him an especially hard time on. i wasn't allowing him to speak and i was interjecting lots of questions. in the course of this argument, don told the court that, in fact, that if a person was -- if a criminal prosecution was brought against a person as a result of evidence coming from a tap that that person would be notified and that that person would be able to challenge the program. so that the program would be challengeable by somebody. and then it turned out some months afterward that notwithstanding that don had vetted his brief and his argument with all the right people, notwithstanding this, that in fact the national security division had not been doing that and don went on a one-man campaign to ensure that this would -- that this would change. and i'm sure that part of the reason don did this was because he thought it was the substantively right result but i'm sure part of the reason is that he told the court something and that he was going to make it true even though there had been a little bit of a sna few in office than his own. and, don, if i tell you that we all noticed that and we all appreciated that, the kind of seriousness with which you take your job and you take what you say at the podium to us, your incredible professionalism and integrity as well as your amazing lawyering and so, don, you are i guess finished for the year. we're just writing all of our opinions and don is sort of carefree and having a vacation. but i want to say that i look forward to kicking you around next year again. [ applause ] >> wow. thank you very much, justice kagan, for that unforgettable and amazing, amazing introduction. which will -- was a good deal longer than my remarks. especially because justice kagan's write right. you can't see a thing up here. so we're just going to have to stumble through it. but chief judge wood and members of the seventh circuit and julie and members of the association, i'm really honored to be here with you. it's a special treat for me to be in chicago. i spent more than 20 years with jenner and block and gotten to see a number of great old friends here tonight on which i'm very grateful for and this is a city i deeply love and even though i'm only here a day it's happy day for me to be here. what i'm going to do tonight is just talk for a few minutes about my job and then what i'd like to do is see if he could have something approaching a conversation and we can do questions and answers i hope for a good chunk of the time we have this evening. my experience is that tends to be more interesting and fun for you and me both. so the job of the solicitor general is to represent the united states and that's really an awesome thing. we file a brief and we file it, i file it on behalf of the united states. i stand up at the podium and get the bejesus beaten out of me and i'm doing that on behalf of the united states. but what does that mean exactly to represent the united states? well, one sense, it's, of course, quite straightforward. i do what most all of you. i come up with arguments. i think about straemgs. i put them this briefs. i argue them at the podium. and that's, you know, the work of the solicitor general doing that and i'm just going to take a minute and talk about what our office does in that regard because it's really quite amazing if you think about it. we've got 21 lawyers in the office, 16 assistants and then 4 deputies and an sg and 4 fellows, young lawyers with us for a year. and here's what this group of laurels accomplishes every year. we brief and argue 25 cases as parties on the merits or sometimes 30. we'll brief and argue 25 to 30 cases a year as amicus in front of the court. we'll file ten or 15 surp petitions a year. 500 or 600 seeations to opposition and the sg has to approve every appeal the u.s. takes and we lose a lot as it turns out, about 2,000 times a year and so we've got to go through a process of approving those appeals and that's actually quite a serious process. so it's really if you think about it, that's an amazing amount of work a small number of judges do. i'm sure judge easterbrook would say we're just pikers when it was the golden age and giants strode the earth and each, each lawyer was responsible for the total that i just described but be that as it may i do think that -- you know, i like to brag on the office because i think if you think about it this way for those practicing in firms which i guess is most of you here, you know, our budget's about $10 million or $11 million a year. you know how much litigation you get one of the firms for $10 million or $11 million a year and contrast that to the amount of the litigation the government gets and taxpayers get for $10 million or $11 million a year. it's an amazing thing you think about it. it's a lot of work for those lawyers to get all that done and that's actually the easy part, getting that work done. by far the harder part is figures out what the position of the united states should be. and it's really an interesting thing to contemplate because the relationship between a solicitor general and the solicitor general's clients and the united states government is really quite different from the normal attorney-client relationship. i was in private practice for many years and in that relationship i would come up with arguments, strategies. you know? talk to a client and say, look, here's how we should approach this case. we should make argument a, make argument b, argument c is a cam ka zee case and destroy the case and can't do it f. the client said, i hear you but we're making argument c, unless you thought it was unethical you did it because that's the judgment of the client and the client made the decision about what the position of that client would be in court. in the job of solicitor general, the situation's pretty much the opposite. one of my pred sos, pran sis biddle said in 1940 for the solicitor general, the client is but an abstraction. he went on to spout haifa lieutenanting language and the sole job to apply the professional e thos and rare if ied ambience of the experience and judgment. so that a bit about the client being an abstraction is completely wrong and i can tell you that on the basis of the many angry phone calls i have received from agency general counsels and occasionally from cabinet officials who are unhappy about the positions that we have decided we are going to take on behalf of the united states when they think of themselves as clients and the way that private clients think of themselves as clients, ie, they should be in charge. but the truth of the matter is that they're not in charge. that the solicitor general actually gets to make the judgment about what the position of the united states will be even if it means overriding the interests and sometimes the very strong interests of cabinet departments or agencies. if, for example, this is just hypothetical, the epa were to lose a significant and a court of appeals has a regulation struck down and feel that that's an important loss and be very insince tent to take the case to the skort, the sg can say and, no, we're not going to take the case to the supreme court even though we agree with you that the regulation's very important, even though we agree with you we think the court of appeals made an error of administrative law, might warrant and may present a terrible scenario for taking that case forward, and if we were to take the case up on this set of facts and lose the case and lose the point of law that matters to us then it's not just going to be your agency that suffers but it's going to be the entire executive branch that suffers and we're not going to do that so in that sense, of course, even though the epa might be the client and that's the party in front of the court, the interest that we're advocating and interests that we're considering is the interest of the united states which is the -- bigger than the interest of that one entity. and it might not surprise you to learn that actually the executive branch is quite a behemoth and there are lots of different institutional views within the executive branch about what the position of the united states ought to be on any given case and there's some really sort of structural, i don't know, antagonism's too strong a word but there's some structural or tensions and difference of perspective baked into the system. for example, the copyright office tends to think most of the time, wants to favor a position of robust reading going to inhibit innovation. state department -- for to hear claims against foreign officials for violations of international human rights. but the defense department, intelligence community worried that if our courts are open in that way, then maybe other nations will feel free to haul their therefore has a different perspective and a big part of the job for an sg is to resolve those kinds of conflicts. and come up with a position of the united states. one thing i have learned in the course of my time in the government is that process, thorough, fair, transparent process is absolutely critical to resolving those kinds of conflicts and coming up with the best judgment about what the position of the united states is. i learned this lesson the hard way and i learned it in the first job i had that justice kagan described. i arrived about dix as after president obama was inaugurated and five days too late to avoid the hot potatoes passed one to another of the people that got there before me and figure out what the administration ought to do about the use of the state secrets privilege in litigation. there had been some criticism of alleged abuses of it and the president and the attorney general wanted a new policy. and i got charged with figuring out what that new policy ought to be and fresh off my 20-plus years of private sector experience, i knew how i was going to handle this. i was going to handle this in an efficient, private sector manner. i was going to find the four smartest people and get in the conference room. we're going to figure out a policy and hammer it out in four weeks and be great and disseminate it to the executive branch and be done in a month and found the four smartest people, got in the conference room, ham everied out the policy. it was beautiful. we sent it around to the executive branch and there was a thermal nuclear explosion because the other 60 or 70 people in the executive branch with an important and direct stake of what the policy was going to be hadn't been consulted so we had to start over and bring everybody into the process and we had a much more laborious and much more thorough process that ended up taking months but you know what? it actually produced a much better product and it -- and it produced a product that had all that buy-in and that for me was a really vital lesson to plern in that first few months in government and a lesson that served me really well in this job because it helped me to understand that that kind of thorough process in which you solicit views from everybody and make sure you everybody out and made a judgment of the position of the united states is going to be that you can explain to the agency general counsel, cabinet head, what that judgment is, why you made it so that they think the process was fair, absolutely critical. and you know, it would be nice if process like that would result in a consensus all neatly tide up in a bow and once in a blue moon that happens. but most of the time it doesn't, of course. you go through that process and what you end up with is conflicting views about what the government's position ought to be. and so, you as solicitor general have to make a judgment about what the position of the united states is going to be and so you have to think about how you're going to make that judgment, what standards do you apply, what criteria do you apply and that's where this gets really interesting. and really challenging. you know, one way to think about how you would make that judgment is to say, well, you could approach it as though you were a judge. you could say i'll decide what i think the best view of the law is and then we'll advocate what i think the best view of the law is. you could think about it differently. you could say, well, i'm appointed commissioned officer of the executive branch serving the president and i should just advance the administration's policy agenda in making these judgments. you could think about it in either one of those ways but neither one of those ways captured actually the say sgs approach the question of how to figure out what the position of the united states ought to be. despite the position being described as the tenth yus tis, you notice that one of the real justices here tonight didn't describe it that way and you will never hear a real justice describe it that way and, you know, that's becau tenth justic the judgment you're making is not about -- a case you're not an administration policymaker in the sense that maybe the general counsel of hhs isn't an administration policymaker. your function is quite different and there's an ethos that traces back a very, very long time in the office and that every sg tries to uphold and tries to pass on intact to his or her successor and that ethos is that you're trying to represent the interests of the united states over the long term as best you can discern them. and what that really means is that what we do is try to defend the interests of the government in doing the things that the government does. enforcing the criminal laws. defending the output of administrative agencies. shielding federal officials from damaging liability, in appropriate cases. defending statutes. and so on. that's really where the judgment is grounded. and it is something that i take very seriously and that if you're going to hold this position you have to take very seriously that that's the way you try to make your judgments. that's not to say there's no room for legal policy choice in the job of sg. i mean, i would say -- you know, i don't know what the exact percentage is but maybe 85%, 90% of the time the positions that the united states takes in a case wouldn't be any different from one administration to the next. one president to the next. but there is a -- there are a range, cases in a range. i don't know if it's 10% or so where the judgments might be different and i think everybody recognizes that that's legitimate. people fight about where the border is in a case of which there ought not to be differences in legal policy judgment and there should be and everyone does think that. there's one other thing that has kind of come home to me during my time. now that i have done this for a few years, that's quite important in thinking about what the position of the united states ought to be and i'll give you my views about that and then i'm going to stop and that point hopefully we can have some questions and it's this. it's become clear to me that one important thing that you have got to do in the job as solicitor general is perform something of a self policing function for the executive branch, particularly in cases where you can anticipate that the court is going to be particularly differential to the views of the executive branch and by that i mean generally national security cases where i think it's fair to say that members of the court and the judiciary generally are going to feel relukt about the to second guess judgments about national security that are made by and advocated by the executive branch and i'll use a historical example to illustrate why i think it is -- this self policing function is so important. and it's an example that comes out of the cases which you all know about not exactly high points in our judicial history. when's come to light in recent years that at the time that those cases were litigated in front of the supreme court and the supreme court was considering the question of whether the internment of massive numbers of japanese american citizens could be justified under the constitution that a secret study had been done by the office of naval intelligence which had concluded that the vast majority of those being detained were being detained without any justification, the office had come to the conclusion that there were only a very few small number of enemy sympathizers within the ranks of japanese american citizens and the intelligence authorities knew who they were, had most of them in custody and were following arrests and then the particular thing that was claimed as a justification for detaining all these people was the concern that they were sending radio messages to japanese ships that were off the pacific coast and both the fbi, j. edgar hoover's fbi i will add, and the federal communications commission after studying that had come to the conclusion that never happened. just didn't happen at all. the lawyers in the solicitor general's office knew all this information when they litigated these cases before the court. and there was as it turns out a debate within the office about what to do about this information, whether to disclose it to the court or not. whether to alter the position of the united states or not. they chose not to disclose it. and to -- and one way, of course, you can understand the pressure that they must have faced, still 1944, the middle of world war ii. it's an incredibly significant time for the country. and i'm quite sure that the leaders of the military were pressing very hard for the continuation of this authority and i'm sure that that was a significant degree of pressure brought to bare on the lawyers in the solicitor general's office. nonetheless, they made a judgment that they wouldn't disclose it and the reason i looking at that brings home to me why i think the self policing function is so important, both pragmatic and principled reason. the pragmatic reason is, well, this information has now come out and it wouldn't surprise me in the least if going forward even though it's many, many decades later, that it's many d fact that this episode occurred many decades ago could well intlui influence the members of the supreme court to be as deferential to executive claims of national security need as they might otherwise have been disposed to. the other reason, of course, is that the rule of law -- the prin principle is not something just that judges provide to this country although they do provide it, of course. the rule of law is something that if you're working in the executive branch, you ought to think applies to you whether or not a judge is telling you. so you have to think about that historical example and it helps realize the dangers. thinking, i don't want to do something like that that is going to even if it's 50 or 60 years from now long after i'm gone is going to have the effect of disabling one of my successors from pressing legitimate national security claims. so anyway, let me stop there. you get a sense of what a fascinating and interesting job i have during the rest of the time when i'm not up trying to field questions from justice kagan and rest of the members of the court. i'm happy to take questions so feel free to jump on in. don't clap. let's just do questions. >> we have two wireless microphones. it is hard to see up here. we will bring a microphone over to you and we will start with coffee and desert service as well. we are taking questions. >> don't be shy. we won't be able to see you to speak up and we will be able to hear you. >> i think we've got one back there. >> okay. general verrilli, so you mentioned coratsu and what the solicitor-general knew then, yet it seems that the united states has not taken a contrary position to the holding of coramatsu and even though it has been distinguished many times since than it has never been overruled and it doesn't seem that the united states government has asked for its overruling. justice kagan also said that you had tried to fix within the government what had gone wrong clapper v.aclu. what should we expect a fix on coramatsu. well, if a case were ever to present the question, i don't think you would be surprised at what the answer to the united states would be to that. he can't imagine it would be different than the answer that you desire. you know, that's a question that comes up when it comes up in litigation. if it comes up in litigation, it will answer it when it comes up. >> anybody else out there? i can't see a thing so it's like -- >> you don't have to let deter . i'm happy to answer questions. >> thank you so much. how do you represent the united states of america when the united states is surprised of so many vastly different people in different communities? >> so the latter part of your question -- i'm sorry, i didn't hear. >> the united states is surprised of so many vastly different communities, even the seventh circuit is surprised of so many vastly different communities, how do you discern what the position of the united states of america should be? >> well, it's a really hard thing. the way you try your best to do it through the organs of representative government that we have. in one way you will look to the statutes that congress has enacted as representing the will of the people in expressing what the interest of the people of the united states are. you look to policy judgments that agencies make. you have to just apply your common sense. the other thing you have to do, i think, and another thing that has come home to me the longer i have been in this job is recognize that you have to appreciate the historical circumstances in which you find yourself. you have to think about being answerable to history for the judgments you make and for me, you know, in thinking about questions from that perspective, i do try to think about the effects that the decisions will make in particular cases will have on the different communities within our country. so it's not a formula for doing it. one thing about this job generally is that there's not -- unless justice kagan failed to pass it onto me, i don't think there's actually an algorithm that tells you what the interest of the united states is where you plug in the inputs and press a but tton and out comes an answer. you have to use your best judgment. >> thank you. it's very unusual for the united states not to defend the constitution alt of a statute. i was wondering if you could answer those questions more specifically about how your office approached the defensive marriage act. >> well, you know it's interesting. i can't give you a great detailed insight into that for the reason that i was actually recused from working on the case during the time the judgment was made about whether to defend the defensive marriage act or not. my former law firm was one of the firms litigating the case and in this administration you had to have a two year ethics restrictions that you had to agree to and i agreed to it and you couldn't work on anything that your former pemployer was made within two years. that judgment was made within that two year time frame. because i was recused, i made sure i didn't have any roll in it or any flknowledge in it. i still don't. i can say that the judgment i had to make was given the fact that the president and the attorney general had made that judgment what was i going to do? was i comfortable litigating on that basis? obviously i was because i litigated the case on that basis. all right. i don't see anybody else. is there anybody else out there? >> there's one. okay. this is like hunting. general, i want to switch gears a little. justice kagan talks about your integrity as you know i know that from personal experience but my question for you is as lawyers given the grid lock and the hatred that's in washington, how do we inspire young people in our profession and outside our profession to follow in the best tradition of public service and bring those people up the best and the brightest on both sides of the aisle to really do what we do as lawyers which is, uphold the rule of law? how do we do that? how do we inspire young people to do that? >> yeah, so the best way for me to answer that question is actually just talk about my own life as a lawyer. i feel a particular obligation to do it now because i do think that -- i am -- i encounter this when i talk to young law students in particular, there is a bit of reluctance on the part of young lawyers to take chances, take risks in particular take risks in taking on probone oe or public interest representations or work. however you define public interest because of the concern. this is true of people you would put on the left and right. the concern is that it's going to be held against them and that the better course is to just play it safe and not do that because it will come back to bite them. every now and then you do see and we have recently a seen a situation where it has come back to bite somebody but what i say to them is what i would say to you. i hope that we could all as members of this profession communicate to younger lawyers is that that is exactly the wrong lesson to draw even in this poisonous climate especially because of this poisonous climate in that i'm 100% morally certain that i would not be up here and have justice kagan delivering that wonderful introduction and i would not have this position of solicitor-general i had not ton the pro bono work that i did. if you had had in the 1980s was that my goal was to become solicitor-general of the united states, one of the things that you would cross off your list was representing death row inmates on an ongoing basis because that was really controversial back then and you didn't want a lot of friends doing it but i decided it was something that i wanted it do. i did a fair amount of it over the years. it wasn't the only kind of pro bono work i did. as it turned out, five of the cases i argued in the supreme court when i was in private

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