tv Key Capitol Hill Hearings CSPAN August 20, 2015 10:00am-12:01pm EDT
dennis -- venice, the late 1300s into the mid-1500s. they were small. they still are a small probe island nation, small in population, small and geography. but they maintained great geopolitics. they were able to survive and conduct trade between the ottoman empire, the byzantine empire and christian europe. ..
date started exploring. most nobly portugal, which started improving innovation and developing better sailing ships that allowed them to sell closer to the win and they started going down in exploring along the coast of africa in till they found their way around the cape of good hope and found a sea route to india and china where they could conduct trade back to europe. the spanish win in the other direction. across the atlantic in the isthmus of panama to the far east and then writes in french and other countries he came
involved with the british were focused on the northwest passage. as we get into the future, does the root that were developed in the early days of sail continued to today with the exception of the suez canal which gave you a more efficient route to get to asia through the states of malacca, the panama canal which goes across the atlantic into the pacific or back to the atlantic and for centuries they have stayed the same. consequently we now have powerhouses as far east, most notably this is where i start talking about singapore. singapore has become the number one transshipment point in asia. they are the most efficient and interestingly enough they are a small island nation. they maintain great geostrategic
relationships. whether china, vietnam, singapore and separate partners and it has contributed to posterity. they're also great innovators. they run great cargo handling. they built drilling legs they maintain their relationship. while visiting singapore a few years ago i went to the distinguished visitors program. i was sitting out for dinner and talking to a minister from their government and at a certain point said you are the modern day venice and he looked at me and smiled and said he knew exactly what i was talking about and it is obvious he had studied history and understood for good steel strategic relationships and staying up with technology
and became one of the greatest trading ports in the world. a little bit later during this conference in iceland at arctic circle there lecture given and this is a slide i got from one of the first lectures given during the plenary session on the first day. talking about the potential for sea routes in the arctic over the next century. of course the northern sea route opening up at russia and the greenberg is the northwest passage and that will take longer for its open up the candidate is making good strides in the northwest passage now in terms of getting to its minds and carrying cargo and he gave predictions on when that might come open. bloomberg is the trans-polar group, and there are scientists that believe that the middle of
the next century by 2050 there will be months of the year but there's no ice in you can use a much shorter route across the poll. estimates of anywhere from eight to 10 days of transit time saved by using the route. what caught my attention is if you look or other specters end up on the wrong side of the chart, a small island nation that maintains great relationships with many people. the next morning after the lecture i started tanking about this and by chance i was having breakfast at the singapore delegation and i said to the same minister that i met at singapore, i said what are you doing here in iceland. he said admiral, we are a strong, vulnerable as a nation. we are worried about climate change in the rising notion and a host of other things and we
want to be here and be engaged. i said mr. minister, no you are not. you are here because you are worried about iceland becoming the next singapore and he smiled at me with that smile of yes, that is right. i said so what are you doing about it. is that that is why we are here. we know how to run ports inbuilt container printing. we been doing this for many decades have we feel we can be of assistance to the people in iceland as they develop over the coming century. if we can establish these relationships, we go back to our country and start looking at how we retooled industries and how we change the curriculum in our schools. we need to be prepared for 10, 20, 30, 40, 50 years from now and we are focused on here i thought therein lies the lesson.
if washington were generally can focus more than 12 months ended in iraq the most most the next election cycle. it's hard for us to get involved in thinking about what is happening 10, 20, 30, 40, 50 years from now. i think they've got the right mindset getting prepared for their future because prosperity is important and that's why you find them in reykjavík iceland. the other large delegation was china. china did not get a chance to communicate with. i believe they are thinking some of the same things. if you go back to the piece of map that shows singapore coming to see shanghai and hong kong, rather major ports as well and china has a need for energy resources. if you can bring them from the bering sea across the northern sea route to say four or 56 days
of transit time to get energy products to china, they'll take advantage. that's why they are making scientific observations in the arctic. to wrap this up, the next major event i went to was an event called arctic frontier which is held in tromso, norway. i got the opportunity of the foreign minister is a very good friend and is very enthusiastic and he was very generous with his time with me. we had a chance to set up her lunch and have a private reading together. i gave him my eerie about why singapore was in reykjavík, iceland. the same singapore delegation as well. he says pat burrell, your theory is almost ready. what you mean by that, mr. minister? it's not going to be reykjavík.
and sure enough when i spoke to singapore, that's why they are in there as well. the united states could learn some lessons. other countries are preparing or the arctic. the challenge is finding the balance. how do you protect the environment, how do you sustain the environment, but also look for development as well, economic development and prosperity. the people of the north deserve the prosperity as well. we are hopeful the arctic chairman council should the dallas program will be helpful, but more importantly we need to draw the attention to the american people. they are disconnected which is understandable if i told the group earlier where we are today in washington is 3500 miles from alaska and there's a whole lot of canadian territory in between here and there.
they are physically and culturally disconnected from u.s. arctic and we need to change that. hopefully the glacier conference with the participation of secretary kerry and the president and the chairmanship of the arctic council will raise the awareness level for the people of the united states and in the long-term help us doing getting gauged and start engaging the infrastructure as well. thank you for your your attention. this is the first time i ruled out the art they can singapore and reykjavík in tromso, but i find it interesting and it's backed up in fact by talking with people. at this point i've got a few minutes we can devote to q&a and i welcome your questions.
>> admiral larry locks their commanders editor of the washington diplomat. yesterday it was reported that hillary clinton's campaign came out against drilling in the arctic in the borders of alaska, something the obama administration seems to favor. i'm wondering if you could please comment on it. >> i can't comment on anything put out by the campaign because i simply haven't seen it. what i can say is that depends on what focus you take. i have been to speak in front of groups where we get in the question-and-answer period and literally a person stood up and said i'm so disappointed in your president. i said wait a minute he's our president first and foremost but why are you disappointed. said because the president is open on up a lot alaska arctic to everybody. i traveled up a week after that
and spoke to a group there heard a gentleman got up at the end of the speech during q&a and he said i'm so disappointed with your president. he is closing down alaska to everybody. there is a difference of opinion. clearly the president has signed orders to set aside certain areas and protect them. shell and other companies have gone through a legitimate legal process to buy leases and may have passed the requirements for gaining permits through the department of interior and are proceeding with legal legitimate business. but this administration done is try to find a balance. the administration is focused on climate change, looking for renewable resources, developing renewable resources, but they are also pragmatic.
they understand many petroleum products, fossil fuels for the foreseeable future and companies in the business have a right to explore as long as they live within the safety regulations and go through the proper permitting processes and do it in a safe and sustainable manner. i don't see a disconnect in what the administration is doing. yes, ma'am. [inaudible] >> -- norwegian broadcasting. they have the same in contradiction to shell, they decided not to drill in that area. could you elaborate a little bit more about the recent concern, certainly not risk-free, which is also something the obama administration has admitted.
could you say a little bit more about that. also, what role the arctic council could and will play when it comes to commercial activity in areas. >> i'm not familiar with what the thought process was clear what i do now in terms of my observations and talking to the various oil companies over time because this is my opinion. my impression is they are willing to take shell on the spirit shall of had some challenges starting up. other companies obviously only says that they are. i think because of that downward price in oil, concerns about how much our company is spending,
exploring for what they are not certain if they are yet, but i think it is a wait-and-see attitude. let's see how shell does before we proceed. that is shows papp's opinion. i can only attribute that to listening to people and doing assessments myself. they have been put through a rigorous process. like i spoke about earlier in my presentation and they have learned exactly what i've learned,, a very challenging environment. having said that, the oil exploration process is relatively -- i would never say easy, but it's simpler. it's very shallow water. mostly i'll just say it's under much less processor and not that far down. if we had not had the wauconda
well -- my condo well blowout, we would not be scrutinizing this as closely as we are right now. in the past, we would never have -- we probably wouldn't have had an alternate drill rig to drill a relief well. these are requirements based on what we learned in the deepwater horizon event in the gulf of mexico. yet at the same time it's a completely different scenario. assuring the goals with the environmentalist that give the environmentalist that give us the most concern. the fact they are still ice up there that trips around. they found that out three years ago when they were up there. in my previous previous assignment as commandant of the coast guard in from a continuing interest, i've been to meet michelle. i looked at their plans and
resources they are devoting an american and supervision from united states coast guard while unseen as well. i think they are as prepared as they can be. they think they have the wherewithal to be able to do it and they are doing it under the legal process is the united states government has placed in front of them in the past every step so far. i wish them luck and good fortune because we don't want to be having to deal with adverse consequences. yes. [inaudible] >> what are some of the additional steps the u.s. needs to take to protect its interest in the arctic and also persuade other countries that the u.s. citizens act is committed to the region? >> or in some of the things we documented our coast guard arctic strategy, some of the things the national arctic strategy and implementation plan
and i would say elect is -- alaska's art strategy as well, certain things are common to all three things. first and foremost, build icebreakers. i was testified before the senate not too long ago and they said admiral, one study says we need six heavy icebreakers. another one has been in for heavy, for maybe a minute just listen to it. they said how many do we need. i said i'm not sure but if we have those studies, would she think we could at least build one. and there is some truth to that. i would like to see us building at least one. we are in a little bit better situation than a few years ago when we didn't have enough money to support any of our icebreakers. polar star is back in service, breaking out and healey continues to do well but they really need to back up and i'm hopeful we will make progress on
the icebreaker. development of a deepwater port. the nearest his dutch harbor. and no way i'm this close, but it's very shallow. patrolling depth is 22 feet of water and even though they expand that come the corps of engineer will never get deeper than 30 feet. there are other locations closer to the bering strait to have good deepwater could be developed as ports but it will take significant effort to do that. telecommunications at least in the north american arctic, there is no fiber opt -- when fiber-optic cable in alaska goes up to put obey. all the villages, cities, they rely upon terrestrial microwave, which is terrible in terms of trying to support the things we do with technology nowadays. so we need some improvement there. not just for people who live there, but the increasing
maritime traffic we need to be able to share information circumpolar between the countries that border the arctic ocean for search and rescue it to good use, maritime response and maritime domain awareness. those are some off the top of my head. clearly no one could use the money for charting. some of the sound is bad both navy go back to 1770 captain cook went up there they were using a piece of lead on the end of the line and physically doing soundings across the coast of bair and they are still being used. we need to update that. and telecommunications satellites. most of the telecommunications satellites are optimally position for a middle latitudes. they don't serve us well for the higher latitudes. gps is pretty good worldwide so we are good they are in terms of
navigation. coast guard arctic strategy and the president's national strategy. yes, ma'am. >> hayek, admiral. amy spark meyer from alaska. my family are from the bering sea coast. i said hi. i think idea before an actual before many people are people of the field, so we rely on the marine mammals of the bering sea and it's interesting what you brought up, like what would be considered a major hurricane is just sometimes tuesday for a whole week in alaska. i wanted to find out how hard would a community or any communities up the coast now that there is a tension and the court just put out -- i think they just announced they've put
out the plan too deep in the port to 28 feet and like the mayor denise michaels and members of the community who have pursued a deepwater port, much deeper than the proposed 28 feet. how possible is it for any other community to find this or get the people out of port? >> that is a corps of engineers project. it is to extend the breakwater further that the challenge he faces you don't go down very far off the coast and you are just into rock. it is difficult to deep in the fort there. there's other places, poor clearance being one of them is a great natural deepwater harbor are right now does not have reliable road, airstrip or something like that to get to it so it will require significant
investment. part of what this is all about is to draw attention and moving things within the administration as we develop the implementation plan and set priorities and get them to the congress. it is tough in the city. the federal budget is under a lot of pressure. most of the things are new starts and they are having a tough time. we need to take advantage the next two years to raise the awareness as much as we can. that is why we send so many arctic council meetings to alaska so they can gain the attention of the world of most importantly u.s. citizens. >> thank you. one other community around my region is actually a giant island off of southwest alaska off the radar. they pursued a port and cited studies by the corps of engineer for years.
just to get china some spotlight like you said this how we can benefit from improved passage and prosperity. just to give people an idea about what we pay for the stories in our villages, which are not connected to roads. when i say my region, it's out to the bering sea. about the size of oregon that you have to imagine organ without roads. to purchase items and nobody else will, and build a store. you could spend $50 for a three-pound box of laundry detergent. you could spend $80 for a box of diapers. you could spend $70 for baby formula. we are kind of held hostage and
tied to our land and culture that is where we want to live. we imagine the benefits as well of improved -- >> -- infrastructure. once again at the maritime environment and you are right. it was $9 for half a gallon of milk. i think i'm starting to deep into other peoples time. i will wrap it up by saying you reminded me of a little story. i visited costa do last year and i was speaking with an alaskan natives who is a subsistence hunter. he hunt seal for their food and he told me the story of the see how expert from washington who came up to visit and meet with them and gave him his expertise
on seals. he says so you are a see how expert from washington. how many seals have you eaten. i sort of categorize people as seal hunters and see how experts and there's a lot of people with passion. unless you visit there and go to the arctic in meet the people and learn about them, you will never be an expert. we need to get more people and increase their awareness. so thank you for attention. i'm looking forward to the panel here. [applause] [inaudible conversations]
>> well, thank you for that great overview. the purpose of this panel is to further give some are different dimensions and different is on what is going on in the art dates to hopefully contribute to asthma hats inside perspective. our first guest and i'm honored to be seated here is ambassador geir, geir haarde sorry to my inverted it of iceland. prior to serving as ambassador of the united states and served as prime minister of iceland in 2006, 2009. next to ambassador haarde is isaac edwards. i usually don't speak in public too much sun little shy. isaac edwards is chief counsel for senator lisa murkowski on the senate energy and natural resources committee and then my
colleague luc coffey who was a fellow here at heritage. ambassador geir. >> thank you for organizing this event. a special thanks to admiral papp for his enlightening remarks in his great oversight over all these issues he gave us and the historic good that came along with it. i guess since he departed quite a bit from the title of the u.s. had the infrastructure ships, i am also allowed to do the same and i would like to talk a little bit about these issues from the dead of the country where i come from and i'm very happy to use the admiral papp's reference point for me also a little bit on the things that
might be important for us in that context. the picture is no longer there, but it was quite illuminating. if they open to this extent, we competing might be in a quite unique situation with the effect of the different possibilities that will open up as far as trade and shipping. of course, this could be 10, 20, 50 years into the future. one has to start a plan. i would like to make the point, unlike alaska, we actually do have the infrastructure now to deal with most of that and if we have 50 years to complete what
would be required, that would not be a problem. we have a developed economy, we have the airstrikes, the international arab runways. we have the ports. so this would be from our lives, a very exciting development if they were to materialize. of course i guess more or less a little bit of guesswork right now, particularly with the route straight across. but it's exciting and this is only from the point of view of shaping transportation and economic development. of course the oversight of with the what is the environment of them have of all of this ice
disappearing and what would be the type of effects from those developments. so there are positives and negatives in this picture. but it is quite interesting and people are known to think decades ahead, like the chinese and others. of course i started to look at this. maybe this explains why the chinese have taken such a great interest in what is happening in iceland, why they have such a big presence. it's been a theory for a while that this is the reason why that is so. it is people exploring but their own possibilities might be in the new situation. i would like to mention another thing that also came in admiral
papp's remarks another search and rescue. we have disagreement from 2011, the nuke agreement on search and rescue and we i think are ideally placed to be the hub for this. sr is this part of the arctic will not be able to serve alaska , but ocean liners, cruise ships and other staff venturing into the art chick region normally would pass by iceland. they are at risk of something happening and it would be icing a normal positioning to be in iceland where we have the facilities and the wherewithal that would be needed. i guess as they say in the computer business, this book the
play. anybody who wants to come can come and take part and contribute for people to work on ice and exercise and so on. and maybe given what the situation is like in the geopolitical sense might be good to start with a limited number of countries. maybe the u.s., iceland and denmark on behalf of greenland or in the neighborhood of norway and take it from there. but we are certainly very interested in the governmental right in promoting this idea and turn it into a reality. i think that's quite feasible and a relatively easy thing to do if everybody has the interest
one further point i would like to make and has not been mentioned by anybody, not at the luncheon and not the admiral papp, of course it is relevant for the art that context and that is fishing. fishing is a very important in many other arctic countries than it needs to be managed and done in a sustainable way. that is how we run our fisheries. that's our fisheries management is based on a scientific sustainable basis. i would like to make the point that we were a bit disappointed when the so-called arctic five countries brought together and agreed on an arrangement for polar fishing or nonpolar fishing.
and our government has made that point to the other five governments that there is no need to exclude iceland when it comes to this and i think we should have been included and i'm sure there will be other ways to work that out and i'm sure that also applies to the other to arctic countries not included in this agreement. so let me stop here, james and maybe as a general point i would like to save arctic issues have been operating to the academic community and people in politics. parliament passed a resolution a few years ago unanimously outlining catastrophe for the government and there has been art take institutions operating in iceland and offshoots of the
arctic council are both located in the university and so is there to concede to them as an arctic explorer origin. >> thank you him ambassador. a little more about isaac. i've known isaac for 15 years. i used to be a staffer before it came to the heritage foundation and they had to chairman that he had to say a word senator frank murkowski of alaska and ted stevens who is chairman of the appropriations committee. i got to know isaac from those days am that kind of worked with communication until it ready to come together. even though i'm from colorado i really appreciate the art sick and happy to help provide a venue and discussion were isaac
on behalf of senator murkowski can share some perspective from alaska. >> thank you, james. good afternoon, everyone. i want to start following up on the ambassador's comment that the infrastructure that iceland already has come you don't see that in places like alaska and the canadian arctic, greenland, parts of russia, but you do see it in iceland and norway, finland, sweden. there are two different arctic's in terms of infrastructure development is available for people to use for economic activity for search and rescue activity, environmental stewardship, that type of thing. there's still quite a bit of ways from the u.s. have on what we need to do to get to the same level as at the other countries have. when you look at how you get
there, one of the things we've been working on l.a. senator murkowski has been trying to work on his institutionalizing what's in the government, both in congress and the administration so that it lasts is a priority beyond just the u.s. chairmanship of the arctic will and wants 2017 pounds you will have a new administration. you will have new people in charge and we need to make sure they view the arctic as being just as important as is being looked at today. hopefully admiral papp will be with us for a long time, but i'm sure he's ready to go on to retirement at some point in his life. we will keep him as long as he's willing to be with us. you need to have their future leaders invested as well. that is part of the effort that we are looking to make far take investment strategy.
when you look at the alaska infrastructure up in the arctic, you really need is there with the basic building blocks. aids to navigation, charts to icebreakers, how you get around that type of thing that's not there and we need to put it up there. one potential way of doing that in these times of difficult budgets, local, state and federal budget is public private partnership. how you let international investors come in and work with you to build toward to help at the infrastructure into place when the government isn't going to have the money to do all that and that is one thing when the army corps was looking at the various port and they settled on gnome as their first selection. there was an amendment within a 2014 bill that allowed for partnership between the army
corps and public entities at that point in time but it allowed public entities to partner with the army corps to make that happen and we're looking at how you expand that to love the private entities to participate in that. so i just throw that out there for some discussion. >> thank you. luc. >> u.s. secretary william seward as he approached the end of his life was asked what was his greatest accomplishment and he responded back saying his greatest, schmidt was the purchase of alaska that will take a generation for americans to realize that. i think we can say it's taken more than a single generation. we are seven or eight generations from his time when he purchased power in 1867. i would like to focus my comment shifting on the security aspect. of course the arctic council does not security under its
agreement. you can't have a discussion about the art date and the challenges without discussing security fact yours. nor can you have a discussion about arctic security without discussing russia. i have of course no doubt about russian officials at the official level working in the arctic will for exchanges among the duma and various legislative bodies in the arctic countries have good relations. fortunately, russia is really controlled at the top by the kremlin and i suspect the kremlin will use a form like the arctic council to drive an agenda, which is unfortunate because the arctic is one area where the u.s., the west and russia could then showed and still do to a limited extent cooperate. when you travel in europe come you speak to members of the
ministry and you get one story about russia. you get quite another. so i'll focus a little bit with russia in the purity dynamics in the arctic. with russia i believe three issues really drive russian policy in the arctic region. first is putin's vision of russia's role in the world. often we hear commentators describe russia's behavior today as cold war russia. we hear where precious ring in ukraine, the soviets of behavior. i think what we see today with russia's imperial behavior, this is how imperial russia behaved before the 1970 bolshevik revolution. basically a 21st century russia with 18th to 19th century ambitions. that drives a lot of putin's policies towards the art date because the art sick of peter
the great in the great northern expeditions. the arctic as a way to rally the public around the flag, make the country proud about something that has very low risk and low cost because they have half of the world's arctic territory and said their national borders. they can get away with doing certain things but at the end of the day they are allowed to inside their own borders. the second is the economic factor. we offered various figures about how much undiscovered oil and gas is in the arctic region. i'm not going to bore you with facts and statistics. let's agree it's probably a lot and know that probably a lot, 80% is in russia's area. so they stand a lot to gain there. already russia has plans over the next few years to invest $3.8 billion in the art region.
this is equivalent to be a tree as gdp and public financing will account for 70% of it. this goes back to the great northern expedition when in 1724, russia spent 16 of its state budget on the mission to one of the world's largest scientific expeditions in history. and then you hear a lot about the northern sea route spared sea route speared russia stands to gain quite a bit with this simply because the fees are so high to use icebreakers to transit routes from end to end. i think also it is slightly overblown a bit. to give you an example in 2013, 71 ships transited the northern sea route above russia. last year 23 transited via the
suez canal to 10,000 ships trained last year. we are a bit up from the point where the northern sea route becomes economically viable. in fact, we forget how big of a place asia actually is. although cutting a version in the netherlands to yokohama in japan is 30% shorter. the same journey from rotterdam to shanghai in china is only 8% shorter considering the suez canal. considering all the risk in everything else associated with transiting the sievers there will be a long time before companies and businesses start viewing this as an option. russia is doing a lot to militarize the arctic. brigades, commit torture, the largest naval fleet in the russian navy. the best paid admiral.
admiral pappas say he's the best paid admiral when he was in the coast guard. the commander of the northern fleet earns more than the defense minister. the fsb is to ignore the region. more training exercises. modernizing, updating our building debases said they are doing a lot in terms of militarization of the arctic. really what they do in national borders is their prerogative, therapist is that when you compare this to a russia's doing in other places, cozzi, thomas, crimea, trends in history, we start questioning what russia might do and what the true motives really are. a lot of the military equipment is dual use as they heard from previous speakers about the difficulties and challenges as search and rescue in the region. it is worth keeping an eye on
what russia's doing in terms of the military and the high north. what is our response to this? nato as an alliance that will conclude here, james. nato as an alliance is divided on the art in the 2010th strategic concept which was the last refuge it can't have published by the alliance which was branded as the strategic concept that will prepare nato for future challenges such as cyberand energy security. the word arctic is not found in the document. every subsequent time that declaration since 2010, you can not find the word arctic because there's internal division inside nato between norway and would like to play more of a role. canada says no need to keep this as a nationstate level. until that's resolved, nato willie won't play an active
revolt because nato was responsible for territory the arctic circle. in the arctic, that means respecting other sovereignty and that means being able to defend iran's sovereignty. i feel that usm partners in europe are far away from being able to fulfill that requirement. thank you. >> before we go to questions or perspectives from the audience i was wondering if ambassador hardy or isaac would like to have been a reflection on what luke said. i don't want you guys to feel like you are booked in by heritage. >> the question of russia in this context is complicated. our view has been in spite of the differences and the problems we have a bilateral relationships as a result of
what has happened in crimea ukraine, let's not mix the drinks. let's keep arctic issues separate and see if we can cooperate and do some good stuff together they are. it seems to me working on the art tick issues would be completely pointless. we are the biggest arctic country, russia. it becomes an exercise of futility if they're not included. >> i will just say when it comes to relations with russia, the arctic issue is one area there has been a reasonable level of cooperation and discourse between at least alaska and the russian counterparts. it is clearly an area that there is potential for building that relationship back up.
>> i'm seeing people here from several embassies including different numbers state-of-the-art to counsel and observers stayed. not going to put anybody on the spot, but if there's perspectives from other countries, they would be welcome too. we've got the microphones going around. please identify yourself if you have a question. >> nothing we said was controversial. >> i am at the swedish embassy. thank you for arranging the seminar today. thank you admiral papp and the panel. just as was said by the atlantic ambassador, they are to council consists of an eight member country and i think from a swedish perspective and from all
a disk, it is crucial that all any legs that this is a good horse really continues to participate in the cooperation. so far and away i hear what you think to and i think we all agree that there should be no tolerance towards the requested behaviors in other parts of the world. as long as we can maintain a good appropriation, it is really a major interest to all of us. it'd be interesting to hear what conclusions you draw from that. the conclusion then proposes also regarding the awareness within the united states. sweden fully support the u.s. presidency within the arctic
council and we get the priorities are highly relevant and we look forward to meeting anchorage in a couple weeks. in order to maintain an awareness, i know that you work hard but then congress is valid earlier today mr. edwards was talking about the arctic that is now 10 members. it would be interesting to hear which parts of the u.s. these numbers come from and what you think about the future of the art to caucuses. thank you. >> to address your point, we are lucky that the arctic remains an area of low stability. strong stability of no conflict. in the same way we look towards economic challenges and possibilities and we have to look at the future of security challenges and how we can best prepare because many capabilities we need to operate can't just be purchased off the
shelf and they are items that take years to generate and bring into the force. we have to be prepared for this. there is a silver lining to this that the arctic is offering area of confidence building between the west and russia that we should be realistic about this. a certain vision of his role in the world and the arctic is another region where he has another lover to poll and he will pull up when it's convenient for head, not when it's convenient for us. we should be aware of that and the real estate. as long as russia continues doing what it is doing in terms of militarization in the arctic region, inside its national borders there is frankly nothing wrong with it. when you examine what they're doing a might of actions outside the borders, that is when we should be concerned.
>> any comments on the arctic? >> has been a broad and diverse representatives of the senate as a whole, members from the south, members of the east coast, west coast, not surprising the alaska delegation is included in there. members see you a generally think their interest lie in not just being from our matters but also energy issues, environmental issues and national security issues as well. very brought representative along those lines. >> while i'm no longer a senate staffer, i want to say that it's great to get the movement going on the arctic caucus because one of the challenges in the united states is sent to alaska detached, most americans don't understand we are at arctic nation. so getting senators, especially
with the lower 48 to understand and appreciate is important to underscore that the arctic is the national interest -- its national interests, do we need to get national infrastructure and ability to be there. infrastructure or icebreakers. an icebreaker is not an earmark for any given state because that is in the national interest for us to be up there and do stuff. so i applaud isaac for the work on the arctic caucus. other thoughts, perspectives? >> actually another question. i have a background as a correspondent to russia and i have been following security at the last nato summit. i think in norway that it is very different from what you describe is your mood, your mental state so to speak. it is like a privately to military people in norway, they
will still say the russian politics in crimea, in ukraine is totally unacceptable of course. but they don't really feel that russia has intentions with regard to the territory or the arctic. it is just as much a question about denying other powers to get too much control. i think also the experience and the agreement with russia in 2010, we have that agreement and does while russia and abstaining from developing its oil resources, oil and gas resources of the stock and field in the barn because it wasn't financially viable. it's not like the magazine all
the time and i think the modernization and lots of it can be at play that they were only so far behind during the years and that still using far less of the gnc on military compared to u.s. forces. i'm just write a new. you wouldn't find any peaceful who feel really russia is threat and not part of the world. another question is in the core areas where russia has said cali mike ukraine in crimea. >> or have to misunderstand if you thought i said tested that norwegians felt under some sort of direct threat by russia as a
territorial ambition against norway or any other art power, sovereign power for that matter. if i did, i didn't mean it. what i am saying is in norway specifically, one of the countries where i find the starkest divide between speaking to members of an essay and members of mod on how to deal with the region and how to deal with russia in the arctic. no one talks about going to war with russia. whatever it talks about the best ways to improve security and you can cooperate to improve admirably a great track record have been assured order with russia. one of only two countries during the cold war they shared a land border with the soviet union. the 2010 agreement on the maritime border was a great example of how problems in the 21st century can be solved the
old-fashioned way by bilateral negotiation cooperations where you don't need multilateral governmental institutions to help solve problems. it's a great example. is at the the summit in 2010 for a firewall between canada and norway in the spin and it was real. >> thank you. trying to wrap this up i know we've got a little over a little overtime. isaac would like a last chance for a last word. >> in relation to what you said with the agreement between russia was an exemplary case, doing things the old-fashioned way, even if it takes 50 years or 70 years, whatever it is. they worked it out in a peaceful manner. it was operable to be welcomed by all peaceloving nations. i just want to say thanks again,
>> and they did a pet scan, and tht kind of lights up a bad place, and it lit up, so they were pretty sure that there was a cancer before they operated on august the 3rd and removed -- the tumor was only about two and a half cubic centimeters, but they removed about 85 cubic centimeters which is about a tenth of my liver. and they did a biopsy and found out it was, indeed, cancer, and it was melanoma. and they had a very high suspicion then and now that the melanoma started somewhere else on my body and spread to the liver. the doctors tell me that about 98% of all the melanoma is skin cancer, and about 2% of the melanomas are internal. so then i came back up here
after that, and they did a biopsy and found that -- they did an mri and found that there were four spots of melanoma on my brain. they are very small spots, about two millimeters if you can envision what a millimeter is, and i'll get my first radiation treatment for the melanoma in my brain this amp. >> former president carter told reporters this morning that when he received the diagnosis, he was surprisingly at ease. beatrice peter southern tweeting -- peterson tweeting that carter cited his faith and said he's in the hand of god. we will reair the half hour news conference this evening at 8 p.m. eastern on our companion network, c-span. and right now over on c-span, republican presidential candidate rick santorum in washington today speaking at the national press club, will be talking about immigration. it's just getting underway, and
you can watch it live. while congress is on break this month, we're showing you booktv here on c-span2 in prime time. tonight on booktv, several of our "after words" interviews. it's booktv prime time beginning at 8 p.m. eastern. this weekend on the c-span networks, politics, books and american history. on c-span saturday, live coverage of presidential candidates at the iowa state fair continues. we'll hear from republican governors chris christie at noon and bobby jindal at one p.m. and sunday evening at 6:30 wisconsin republican governor scott walker holds a town hall meeting in ashland, new hampshire. on c-span2 saturday, booktv is live at the inaugural mississippi book festival beginning at 11:30 a.m. coverage features former governor haley barbour as well as panel discussions on civil rights, history and biography and the literary lives of harper lee and ewe doer rah wellty.
and sunday morning at 10, author and columnist katie keefeer shares her critical thoughts on the obama relationship with millennials. c-span3 saturday afternoon at five, columbia university's andrew -- on the preservation of architectural landmarks and the history of the commission created to protect them. and sunday at 4 p.m. on "real america," three films on the pilot district project, a program administered by the johnson administration to help improve poor relations between the police and the community in washington, d.c. after the 1968 martin luther king assassination and subsequent riots. get our complete schedule at c-span.org. supreme court chief justice john roberts has held the position for ten years now. earlier this month current and form toker assistant solicitors general who have argued dozens of cases before the supreme court talked about the first ten years of the roberts court and
predict what's ahead in the coming term. this is an hour and a half. >> well, good morning, and good early morning. it's nice to see all of you on this beautiful morning in chicago. welcome to this aba showcase panel on ten years of the roberts court. my name is kannon shanmugam, and i'm a partner at connolly in washington. i don't know how many of you remember where you were on september 3, 2005, but i remember where i was. i was at a college football game with my father. in fact, it was the first game of the season, if memory serves, and we got to my folks' house after the game and turned on the tv and saw the breaking news alert on cnn that william rehnquist, the chief justice of the united states, had died after a very short battle with cancer. and that triggered a very fast-moving series of events
that culminated in the confirmation of john roberts as the next chief justice of the united states. and within a month, he was sitting in the center chair of the supreme court hearing oral arguments. well, for me it's very hard to believe that that was ten years ago, and ten years ago almost exactly from the date that we sit here today. we're going to talk today about a number of aspects of those last ten years, and i will just very briefly introduce the panelists and then talk a little bit about the format. to my right today is miguel estrada, a partner at gibson dunn in washington. he's been at gibson dunn, hard as it is to belief, for almost two decades. he is one of the best known and, indeed, one of the best advocates practicing before the supreme court. he has argued 22 cases before
the court, first as a lawyer in the justice department and then in private practice. to my left, no commentary on the positions of the new york times, is adam liptak, the supreme court correspondent for the times. he's been the supreme court correspondent, i believe, since 2008. so he has covered most of the roberts court and, of course, had covered other legal issues before that for the times. rather like a former baseball player who turns into a color commentator, adam is himself a lawyer having practiced at the cahill firm in new york before going this-house at the times -- in-house at the times, and so he brings the perspective of someone who knows of what he speaks. and to adam's left is nicole saharsky, the honorable nicole saharsky according to her name tag -- [laughter] and nicole is -- >> just a regular person. >> nicole may be a regular person, but she's an
extraordinary lawyer. she has argued 23 cases now before the supreme court if my math is correct, and she is an assistant to the solicitor general, so she serves in the government's office that handles all of the government's litigation before the supreme court. i believe nicole has been there since 2007, is that about right? and she is now, actually, the longest-serving assistant in the office, and i can say that she is also one of the finest advocates before the supreme court, and i know that from personal experience having argued against her last fall in a very interesting securities case, the omnicare v. laborers case. so in terms of the format for this morning, we have approximately 90 minutes. we're just going to kind of chat among ourselves for most of that time, but at the end we will take questions from the audience. and if you're too shy to ask, feel prix to send me a tweet -- free to send me a tweet, and i will happy to read out your question if you don't want to
vocalize it yourself and, indeed, i have a few questions that were submitted on twitter earlier this week which we'll get to towards the end. but let me start with just a very general question for all of the members of the panel, and i think i'll start with adam and then go to miguel and then to nicole. that is, if you had to think -- we're going to talk about substantive areas of law. i promise given the hour we're not going to get too deeply into dock tribal issues -- doctrinal issues, but i want to start with general observations about the style and the overall approach of the roberts court. and, adam, i guess i'll put the question this way: if you had to think of and identify a distinctive characteristic, quality of the roberts court and really any aspect of the roberts court, what would that be? >> so, kannon, i might start where you did with the chief justice taking the spot of chief justice rehnquist. that was, of course, not the
spot for which he was originally nominated. he was originally nominated to replace sandra to con or four -- o'connor. i think the chief justice in a handful but very important cases may have voted differently because he's got an institutional perspective in addition to a jurisprudential one. he is, after all, the custodian of the court's authority, prestige, legitimacy. and in taking the chief's spot, it led to justice alito taking justice o'connor's spot. and justice alito -- we've now had four versions of the roberts court which is unusual after 11 unbroken years of the rehnquist spot, all of a sudden we have o'connor briefly, then alito, then sotomayor, then kagan. but the only switch that matters ideologically is alito for o'connor. and that's the distinctive characteristic of the roberts court, that alito in key cases
involving abortion, campaign finance, race probably voted differently than justice o'connor would have. and that's my best understanding, my best shorthand way of saying what's distinctive about the roberts court. >> we'll talk a little bit, i'm sure, over the course of the panel about the central role of justice kennedy now with the changes in the court's membership, but, michelle, maybe to -- miguel, maybe to pick up where adam left off, you have the unique perspective in this panel of having spent as much of your career in front of the rehnquist court as in front of the roberts court. and so you're as well placed as anyone to kind of comment on the differences in style. >> that makes me old. [laughter] well, the old chief would interrupt you in the word if your time was up. the new chief a lot -- is a lot more generous with the clock, and he might actually let you
finish your sentence or give you more time which never would have happened in the rehnquist court. i think adam is right, the changes in 2005 have done a lot to change what we think of as the roberts court. i think there are cases in the lowest shifting at the time he joined the court in the confrontation clause, for example, where the law was going in one way and the addition of justice sotomayor who was a former prosecutor have shifted it back in certain ways that are not all that happy for justice scalia who was at the forefront of trying to move the confrontation clause law in a pro-defendant way. so you can't really think about the roberts court about thinking about the ensemble of people who have gotten there since 2005 because, yes, it is a different court because chief justice rehnquist is no longer there, but it's a different court because justice kagan and justice sotomayor are very different from justice stevens and jus tuesday suit -- justice
suiter. >> nicole, your arguments have been in front of the roberts court, so any further observations on it? >> i guess when i think about what the chief said when he was going through the confirmation hearings and the like, you know, he pledged to be more of an um pure -- hard to know what that means, but also to take a fairly measured and incremental approach. and i think it's sometimes hard for the public to see if that's happening around because the things you hear about are where it's not necessarily clear if the court is taking a measured or incremental court. the court decides cases narrowly, not reaching far ahead of where they need to be to decide the case. and i think the point, kannon, that you made is a good one, that chief justice roberts is probably very different than associate justice roberts would have been. chief justice roberts is very aware of the court's role in america, of perceptions inside the courtroom. i mean, he, for example, he in
the gay marriage case read his dissent from the bench. and we in the sg's office, so far as i can remember, had never heard him read any dissent from the bench. he just doesn't do that. he doesn't make waves in that kind of way. he might concur or dissent, but he is not a justice and scalia a justice alito. there may well be one, but, you know, he takes a very chiefly approach. i mean, that's really the only way i can describe it, that he really does see himself as that figurehead who is going to, you know, take the court where it needs to go but not be the one who's really pressing the boundaries in the mind run of cases. in some cases, sure, but in the mind run, no. >> for the next few minutes i'd like to talk about the chief justice's style, and i think there are really sort of two components of that, his personal style, the way he conducts himself at oral argument and the like, and then his, quote-unquote, agenda. and, of course, he famously said after he was confirmed he wanted
the court to decide more cases unanimously, he's talked about the judicial role and judicial mod deathsty. we're not going to run in any particular order from here on out, so i don't know if anyone wants to weigh in on any particular aspect of that. >> on a bench full of very smart lawyers, he is among the very smartest, quite charming, an exceptional legal craftsman, very good writer. when -- i would say there's only he and kagan write opinions where from its standing start you read the fact section, and you really understand what's going on because they've labored on it to make it crystal clear. and that's an exceptional quality. >> he, he is a charming man, but he can be awfully tough at oral argument. >> yeah. but not tougher than the old chief. the old to chief was sort of tough and sometimes nasty and dismissive. in a very charming way -- [laughter] i've been on the receiving end where, you know, he would, like, say, well --
[inaudible] [laughter] and you knew he actually didn't give a daughter. but he was just yanking your chain. there was some argument where, you know, if if he did not like the position that you were arguing -- this is the old chief -- he would cut you off really quickly, and there was one time where harry -- [inaudible] was ragerring some case, and his red light went on, and he said i meant to save a minute for rebuttal, and the old chief said, "but you didn't." [laughter] and that was that. i think the old chief has a more congenial manner than the old chief. sometimes you can get on his bad side. i haven't yet, thankfully. but i think he has a better understanding for what it is to be on the other side of the bench, because he was there so many times. and i think he is a little bit gentler with people that he is questioning even when he does not agree with them. >> but not always with the sg's
office. >> thank you for that. [laughter] >> also because he used to be there and, you know, every so often he may be -- [inaudible] the positions the administration -- >> that's what makes it -- >> do you think that's why he's tough on you is because he perversely was in the sg's office? >> no, i don't think so. there have been a few cases that he and perhaps justice alito see as, like, government overreaching that he's just not happy with. but, you know, a lot of the things where he gives the government a hard time are not high profile or even overreaching cases. i had a case this past year that was about kind of an arcane judicial review eeoc question, so not something that was getting people out of bed in the morning -- >> like this. [laughter] >> and he questioned me, like, very aggressively for five minutes, you know, why should we trust you? why should we trust the government? and i'm thinking, i make, like, $5. i'm up here doing my best, but why are you yelling at me? [laughter] and i just, you know, some of the times when he says things
like i can't believe the government would say x, i'm like, well, but you worked for the government, you know why we would say x. why is this happening? >> just for the record for anyone who may be watching at home, lawyers in the sg's office do get paid the minimum wage. [laughter] don't want there to be any doubt about that. adam, let me turn the discussion a little bit back to 2005. obviously, the -- >> kannon, but we didn't answer the second part of your question which is an intriguing part, does the chief justice have an agenda. and i am sure that i've written that he has, and i'm sure he thinks he does not. i'm sure he thinks, and earnestly so, that he decides cases one at a time. but there do seem to be cases, in particular cases about race, that light up his curiosity and his assertiveness. and i'm curious if other panelists have other things that they think this chief may care more about or less about, like federalism, than the old chief. >> yeah. so let's just table that for a minute, because i do want to get
to that, and i want to talk not only act where the court is on substantive issues, but let me just sort of ask one last question about kind of personal style. so we have a chief justice here who actually clerked for the last chief justice. he clerked for then-justice rehnquist at the supreme court. he was one of the pal bearers at his funeral -- >> [inaudible] >> so i'm curious to what extent he modeled himself early on on the late chief. and as you pointed out, he came into this sort of interesting situation where he was joining a number of members of the court who had been together for this unprecedented period of time. do you think he started out being more like the late chief justice? had he changed? >> you know, i don't think i'm -- i don't think i'm the right person to answer that, but i'll answer it just a slightly different question than the one you asked. i do think the fact that he clerked and the fact that he's so highly credentialed is characteristic of this court
which is all lawyers who attended harvard and yale law school, all with the exception of kagan, former federal appeals court judges, no one who's run for elected office, you know? quite unlike justice o'connor who was a public person who served in all three branches of the arizona government. that you do have in roberts and the rest of them a -- and the old chief talked about this -- that there's a tendency in american judicial life to become more and more like the europeans. so you don't have what the brown court looked like of a former senator, a former california governor, a former attorney general, large public personalities making decisions but, rather, highly credentialed lawyers who almost from the beginning of their career had only one goal which is to become a judge as in europe where being a judge is a lifelong career, i think we see that with this court. >> so is he his own man?
i assume the answer to that is, yes. >> oh, absolutely. king v. burwell, you wonder whether we can read, but he's definitely his own man. [laughter] he, you know, he runs i think, you know, adam is right. you know, the court is a professional court. they're all very highly skilled, technical lawyers which has not always been the case. i don't actually mourn, you know, the passing of the warren court or the fact that, you know, minton and beenson are no longer telling us what the law should be, because if you read their opinions, they're incomprehensible when you can actually make out what they're saying. i think it's good to have a professional, skilled court, and i think it's good to have good, technical lawyers. i don't buy into the myth that we have to have a senator and a governor who's purpose is to bring something other than law to the law. i mean, i wish the current court brought more law to the law, but, you know, that's where we are. >> so let's take up adam's
invitation to kind of look at the court's docket and to look at some substantive areas of the law and to pick up on the question that adam was trying to pose to himself. how has the court changed in terms of its priorities and the cases it puts on the docket? one of the questions i got on twitter was, you know, can the panel talk about the court's ever-shrinking docket, and so i guess part of the question is, is the docket really shrinking? and second, where is the court sort of focusing its energy nowadays, and how much of that can we attribute to the chief? >> i think some of that. i don't think the docket is really shrinking. i mean, i think people have relatively short memories. i was a law clerk in the '80s where the court heard about 150 cases on the merits every year. in september or october 1988, congress changed the law and got rid of mandatory appellate jurisdiction in most cases with the supreme court. and out turned out that a lot of the cases that the court was
hearing back then were challenges in state proceedings that were, really had no business being in the supreme court just because the constitutional question was raised, and it was mandatory jurisdiction. there were, like, indian tax cases, all matter of things that are important to the parties, but not that much to the country. and since congress changed the law in 1988, you have seen a very sharp drop in the normal cases that the court hears, but i think it has stabilized in around 65-70 a year. and i think, you know, it has been there for several years. i don't think it's shrinking. i mean, i do think that the court is exercising a lot more care now that he has choice in the cases he takes, and the chief justice having come to the court from, i think, a business law background has had some influence from what one can tell. i mean, others may have contrary too, one can't really know, into the composition of the docket.
you have noticed that whereas congress -- i mean, whether the court used to take one patent case every three decades, now they take several each term. mostly to flip the federal circuit. i mean, the federal circuit gets a return so often on patent cases, makes you think you should have a specialized court for those cases. [laughter] >> well, and, you know, at least with regard to this aspect of our discussion, nicole, the court does seem to be still relatively deferential to the government when it comes to which cases it agrees to hearment and it tends to agree with the government's views, right? >> yeah, it tends to agree with the government's views. a lot of people see, like miguel said, with the rise of the roberts course taking a lot of business cases. we've been in some of them, you know? i thought, if i think back to when i was in private practice which was, i guess, at the beginning of the roberts court, i remember the kinds of things the business community was up in
arms about was, like, punitive damages. there was one case, the exxon, before the supreme court during the roberts court, but there wasn't a lot that was really on the business agenda. now there's the class action concern, the walmart case, and there's even in, you know, particular areas of law like securities fraud, the government has an interest in those. there's been, i think, a pretty serious attempt to get some cutbacks there on the part of the business community. and now with the union cases, you know, even the cases that have been granted for next year. so those aren't, those are probably cases that the government has less of or as much of an interest in as the business community, and we -- some of those the court has asked for our views about whether to take. it's a call for the views of the solicitor general at the certiorari stage. we have the cert brief, should we take it, should we not. i can't say they've deferred to us all that much on those business-type questions. >> so adam is our color commentator here. what is going on with those changes in the court's docket?
>> so i'm persuaded, and reuters did a nice study on this, that the rise of the specialized supreme court bar which continues to dominate and increasingly so both at the cert stage and the merit stage and the increasing likelihood that a business group will find the right case and the right lawyer to launch a cert petition has aided the court which is, it's pushing on an open door in increasing its business docket. and we've talked about some of the kinds of cases. i'd also mention arbitration. the business community has done really well in this court. and i think it's attributable at least in part to the small number, and some of them are on the stage here, but the ones in private practice, the small number of lawyers who really dominate the docket. >> so, miguel, do you agree with that in terms of why there are more business cases on the docket?
>> no. i mean, i think you can always knock on the door, but they can always slam the door in your face. and i think, you know, the way back in, you know, the rehnquist court ken starr, i think, when he was former sg wrote an article bemoaning the fact that there were these crucial business issues that, you know, he tried to take to the supreme court to no avail. but it was, indeed, the experience of private practice at the time that even though you had well-heeled, you know, you have ken starr as your lawyer, all of that, you know, the court was just not all that interested: so i think it is maybe part of what adam said which is pushing op an open door. i think this court is more receptive to believing that those issues are as important as the subordinate to the subordinate to the subordinate clause in some subsection of the anti-terrorism and effective death penalty act which they take several a year for reasons that completely mystify me. >> i think part of it is just
organization on the business community. think of the rise of the chamber of commerce and the job that robin conrad did there thinking what kinds of issues do we want to be addressing in the states' courts of appeals. the kinds of cases the court was deciding in the 2005 term, it seems like the issues that the court are are getting have been kind of brought up better through the courts, you know? the walmart case was, like, a huge and attractive case, i think, from the business side. i think there are certain issues that, you know, the business community has been pushing kind of better than if you look at the 2005 and 2006 terms, you know, there were some business issues there, but it seems like it was more scatter shot. and i don't know how much you attribute to the lawyers and to the court if that's some part of an agenda that some members of the court have, but it's definitely happening. there are definitely issues that keep coming back, security fraud, class actions, etc. >> adam? >> to some extent, the court puts a sign on the door saying, "please knock."
so justice alito, for instance, has made it very clear he would love to have another case, and he got one in short order about public sector unions. >> yeah. and you write a very interesting piece that i'd recommend to everyone on the subject of justices essentially inviting future petitions for view, and the unions case is one of those. if the number of cases on the court's docket has remained relatively static, what is the court taking less of? i'll offer one possibility, and you guys can either agree or disagree, and that is cases involving federalism and the relationship between the federal government and the states. when i was in law school in the hayday of the rehnquist court, you know, the big cases were lopez, the case that imposed limitations on congress' commerce clause power, seminole tribe and all of the cases on sovereign immunity, and a lot of those issues have largely receded from the court's docket. >> that seems right. you know, one perception that i have of the court back towards the beginning of the roberts
court was that the court was granting certiorari just to resolve circuit splits. the court saw its role as we need to resolve circuit splits, and they would do it. and now the court, i think, has taken cases more along the lines of we think the decision below is wrong, maybe every court had held way, but we're going to take this because this looks fishy to us -- >> like the phish case. >> i'll just put that one on the table for now. you know, i think the court -- maybe it's a level of confidence. i think this is a very confident court in many respects, and it's a level of confidence about kinds of cases that they think matter in america. but it doesn't seem as random as it did at the beginning of the roberts court. >> is federalism just a low priority for this chief justice? >> i think that's basically right. you know, i don't think it was a high priority for the old chief, but it was a very high priority for justice o'connor. and when i was a law clerk, i do remember that, you know, we had some of these cases, and she would walk the halls, and she would come lobby my boss on some
federalism case. and i saw her, like, going down the hall and having justice scalia and talking to him about some commerce clause, you know, 11th amendment case. and she would not be put off on those cases. and i think the chief was congenial. he was, you know, the person who, after all, thought that national league of cities should still be the law. i be i think he would not be pushing as much if she had not been the engine for that. >> do you attribute that just to her background? >> yeah. i think she coming from the west, coming from arizona -- >> the real west, not california. >> as justice scalia would say, the real west. in having been a state official in, you know, the real west, she took these things really seriously and took it as a slight when the federal government trampled all over what state governments were doing because she had been the state government. and that is no longer there.
and i think that the chief, the old chief was con genal with the point of view, but he was not pushing it. she was pushing it. >> yeah. adam? >> well, and this chief justice except when he was in private practice has worked for the federal government, as have many of the members and the newer members of the court. that's a common thread with all of the members of the court who have joined in the times since. >> well, let's talk a little bit -- >> let me just add one thing. the interesting thing about justice o'connor leaving is everyone talks about the rise of justice kennedy as the swing justice -- [laughter] i know, that's a slip of the tongue. >> as much as you would think. [laughter] >> he could, one might have expected him to, you know, push the federalism agenda almost as much. and he's certainly sympathetic to it but not always, you know? there's cases which could have gone off on kind of federalism-based grounds that haven't, and it's just interesting to me that he could have played that role. he clearly did not have the same background and perhaps the same passion that she did, but -- >> he pushed federalism in the first marriage case, and then he
stopped be pushing it in -- >> yes. well -- >> so, you know, on that note, let's turn to substantive areas of the law. and let me sort of pose one of these sort of tried-and-true questions. is -- everyone talks about the roberts court, but is this really the kennedy court? >> he, you know, in 5-4 decisions two-thirds of the time it's kennedy plus liberals or kennedy plus the conservatives so, yes, of course. but at the same time, the chief is in the majority almost as much as kennedy. and the chief justice, when in the majority, gets to assign the majority opinion. and that's not an insignificant power. so in that sense, you know, obviously it's also -- >> you suggesting that that's not entirely accidental? >> i am suggesting that, yes. no, i mean, if it's a close thing and by voting with the majority you can find a way to
give rise to a narrower decision, you might be tempted to do that. >> yeah. >> go ahead, nicole. >> just to give an example, i was kind of thinking about this, that there's one of the issues in which i think the business community's been pushing and the chief justice has been active has been in securities fraud. and in particular there was a series of cases about this idea of fraud on the market, the idea the fraud on the market way of proving reliance on securities fraud which some of them on the defense side believed was too friendly to class action plaintiffs. so there were two plaintiffs with the same name, and the first one brought a very narrow question where the fifth circuit had said you had to prove a certain something at class certification to go forward, but you could still rely on the market theory. and there was a second case that actually addressed should you have this brought on the market theory at all. the first case the chief jus race wrote the opinion, and the fifth circuit was wrong to make you prove this extra thing and the theory was valid, etc., so that position prevailed. and then we had this bigger
question which the government also participated in the briefing, should you have this theory at all? and i remember briefing the second case about this theory, and i thought, well, we've already won this once, so i'm going to look at that opinion and see what great things i can use in the brief, and the chief justice wrote this opinion, and i'm readying through it, and i thought, now, this says almost nothing helpful to us. [laughter] it is written so narrowly and so, you know, with the knowledge that this orr case is probably coming -- other case is probably coming that it really does not advance the ball much at all. and i thought, this is a talented person who is deciding this case in this way knowing the other case was becoming. whether it's because he wants the court to decide cases narrowly or an agenda with respect to the issue or whatever, it was an example where it really was -- >> does narrow decision making sort of accrue to the chief's benefit in that it allows him to exercise that power to control the opinions more often? >> yes. and to follow up on nicole's point, of course, the two voting rights act cases are an
appropriate example of this where the first time up, challenging section five of the voting rights act, the chief justice writes a very narrow opinion as to which i think everybody but thomas signs on. but in juxtaposition with what nicole just said here, the chief put in a couple of paragraphs that would come in very handy when shelby county turns up just a couple years later. and they're saying we already decided that there's this principle called equal sovereignty of the states which you will search the constitution in vain for. and is having decided that, we can now go ahead and effectively strike down section five. >> i think that's right. i'm not sure to what extent there's a conscious, you know, decision to write narrowly for instrumental purposes. if you think about it, and i assume he has thought about it and if he thought in this way he would have thought about it, you know, it's not relatively
unlikely that we're going to have a hillary clinton administration in 2016 and, therefore, you know, his colleagues are not going to get any more con congenial as time passes. for instrumental reasons, he would be writing more broadly to cement things while he has the votes. but, in fact, he isn't. and so is you would think he's writing these things narrowly because he actually thinks that's the appropriate role of the court, not because he's doing it for any instrumental reasons. >> isn't one side effect of writing opinions narrowly that issues inevitably end up coming back to the court in relatively short order? i mean, nicole has referred to -- >> halliburton -- >> -- halliburton and that's, obviously, one such case. the other case is section five of the voting rights act and with now the affirmative action case which is now back two terms later? >> i mean, there may be some, the chief or whoever's writing may seem some benefit to that to
kind of prime the pump. let's have an oral argument, see what people are thinking about this, let's kind of plant some of the seeds. and i understand that. and the erica john fund v. halliburton case, that's essentially what happened. it ended up being the case that broad on the market rule prevailed. i think a lot of people thought that rule was going down, basically, and it didn't. but -- >> with the chief justice in the majority. >> it was surprising. but, you know, part of it is just there are decisions, i think this court sees decisions from the 1970s and 1980s, and they're written in a different way or reasoned in a different way than the court does things now. they're written in broader strokes with maybe not as much citation or will being or thing -- or running or things that the current court would like to see, so they're kind of giving the stink eye to these decisions, not sure whether these are good decisions or not. if you can persuade them, look, there's actually a basis, it's a good one, let's stick with it, but the court's willing to look at them again. >> that raises squarely the
question of this court's attitude towards stare decisis and how it may be different than its predecessor's. >> i feel like there's a lot of discussion, i don't know if it's dispositive, between the difference of starry desai us in the -- starry stare decisis ande context constitutional cases where the court has the last word. so there's a lot of talk of that. the data actually suggests that on the usual metrics of activism which is, is this a court that overturns a lot of earlier decisions, is this a court that strikes down a lot of laws, it's perfectly in keeping with earlier courts although when it does do those things, it tends to do them in a conservative direction. >> you think? i mean, you know, same-sex marriage, the juvenile death penalty and all of those cases where justice kennedy is actually voting opposite cases
that he joined in the '80s and where the people joining him are, you know, the left of the court? >> yes. those are all exceptions that prove the rule. >> aha. what are the examples of the rule? >> well, you know, there have been high profile cases like voting rights. just things like, they're very big decisions. i mean, we haven't talked about campaign finance, but the campaign finance and the role this court has played has been huge. if you had told me ten years ago that a corporation is a person and it has exercise over religion rights and speech rights, i would have been surprised by that. >> and the heller case completely revolutionized the view of the second amendment. >> i thought you were going to say that corporations also can pack heat. [laughter] >> just you wait. >> we've managed to refer to several provisions of the constitution all at once. let's start with the first, at least first in the bill of rights which is the first amendment, and, you know, is that an area in which the changes in the court's
membership have really made a difference? >> speech or religion? >> well, let's do both. let's start with speech. >> i think the court almost to a person is a far more pro-speech court than the rehnquist court was. and i think that that's a factor of, you know, the changes in the membership other than the chief justice as well. i mean, there was a case dealing with signed ordnances in arizona, you know, the case last term where, you know, this whole thing was tossed out as cotton based. the ninth circuit had upheld it because, you know, the ordnance basically said if you have an ecological sign, you can have this, or if you have a directional sign, you can have that. and the ninth circuit somewhat surprisingingly has thought that was not content-based. the court said, no, that's clearly content-based, but you had justice kagan writing a concurrence saying why do we
have this case? this hasn't passed strict scrutiny, intermittent scrutiny or even the last test. but you have a lot more questions where you see pretty much everybody in the court going, no, no, you clearly can't to this. can't do this. and i don't think you had that in the rehnquist court. justice rehnquist himself was sort of a big statist. >> yes. and as skeptical about speech rights claims as any member of the court. >> so miguel is right that almost to a person they're pro-speech. that person is justice breyer. that case is actually very bold and makes the point that i think is new, thatsomething is content- if something is content-based, it triggers strict scrutiny. and justice thomas cited a pharmaceutical marketing case, and i think it may well be part of this court's agenda a to make
sure all speech restrictions are subject to strict scrutiny. on the other side of that expansion of strict scrutiny is the only two decisions as far as i know with majority opinions upholding laws challenged under strict scrutiny come from the roberts court, humanitarian largic and now williams yulely. we have a cheapening of its bite. >> i hope everyone is sufficiently caffeinated, because i want to raise the question of standards of review and approach of the roberts court to standards of review. has there been an erosion of the importance of standards of review in this court? >> um, i think that's, i think that may be right. you know, even thinking outside the first amendment context, you know, i do a fair number of criminal cases, and i feel like this is just my own personal view that the court is, like, very confident that it can look at something and decide, like, right or wrong, reasonable or
not reasonable. and if it needs to explain that in the on context of a standardr review, it can do that. but for a lot of it the court's just looking at it and looking at what makes sense and making their own decision. i mean, the interesting thing to me about the first amendment case -- and this isn't directly answering your question, but it's something that's interesting to me. it's not just that the court is pro-first amendment, it's that it's in context where you could have seen them going the other way. like some really distasteful speech -- >> stephens. >> yeah, well, stevens, the animal -- it was a dog fighting case. >> schneider especially. >> people protesting military funerals, yo i had the stolen valor act which maybe was weird, but people who were impersonating that they had purple hearts -- >> half of congress. [laughter] >> yeah, i mean, but, i mean, you know, you think back to, like, the '80s where you glad the flag-burning case, and that was like, wow, this is a hard speech to protect.
this is a tough thing to watch someone do, and that's at least like political speech. they had some of it, what value does it have to make an animal crush video or a dog-fighting video or protesting funerals of people who have served in the armed forces but the court doesn't seem to have qualms about that. >> except for justice alito in both of those cases where he was offended by both of them, and he was basically the long vote on both of them. >> what about the court's approach in criminal cases? it feels like this court is more friendly to criminal defendants. >> well, i think miguel kind of started with this. there were some things happening in the criminal law before the chief justice took over, and mostly with the kind of -- >> crawford. >> and with the crawford line of cases. the sixth amendment confrontation clause cases and the aparenty cases increase the punishment behind the statutory maximum need to be proven beyond a reasonable doubt, put in the indictment, etc., and there have been a lot of questions following from those.
essentially, the sentencing guidelines at least in a mandatory way were invalidated. from the government's perspective, that was a huge deal. crawford has spawned, like, a large number of cases. when i was in law school, we learned ohio v. roberts that you have to have liability for out of court statements and then you can prove them in court, and over a period of years the court pretty much decided what statements were good and what statements were bad. the rules were set, and crawford kind of put that out the door, and now we didn't know what kind of out of court statements could come in, and that poses a lot of practical statements about 911 calls the court has had to answer or statements, like a person who analyzes dna or a sample of some kind, whether they need to testify. i don't know how much of that is necessarily attribute are bl to the roberts report. >> justice scalia. >> yeah. >> in fact, a lot of that was in hand before chief justice roberts joined, and one of the things that has happened in
crawford and in aparenty is that his colleagues have steered him down. b i mean, you know, and he is not happy about it. justice scalia is not. but he was the one pushing those for criminal defendant things, and in some ways with people like justice sotomayor have dialed that back in ways that justice scalia doesn't like. and you might think it's really getting us back to the roberts paradigm. they had a case last term involving child abuse where the opinion of the court by justice alito started out by talking favorably about ohio v. roberts and which caused a conniption on the part of, you know, justice scalia who could not bring himself to even name justice alito in his opinion -- [laughter] saying the author of today's opinion, the author of today's opinion. he was, like, really angry about it. >> i think he was writing in that genre that only justice scalia writes, tour yous concurrence. [laughter] >> and let me -- yeah, and we'll
take, let's hold off on questions just for a minute, because i want to make sure we cover the entirety of this topic. substantive questions of criminal, boy, teams like the government has a hard time whenever it's dealing with, say, the construction of a criminal statute. those cases seem to be overwhelmingly going to the defendant these days. >> the court struggles with two impulses; it hates criminals, and it hates the government. >> see, that's not true. [laughter] >> and sometimes, you know, the government looks a lot less empathetic. >> i think there have been a few cases in recent years where -- and i don't even know it's the whole court, but i think there are some very vocal members of the court who are unhappy with what they perceived as government overreaching, and i think bond was one of those cases. that was about a lady whose husband cheated on her, and she got some poisonous chemicals and tried to poison this lady. >> wait, wait, wait, she smeared -- >> she put it in a mailbox. a mailbox is a federal --
>> yeah, i understand that. you know, you did not have to prosecute her for a violation of the chemical warfare treaty which is what really set off the court. [laughter] i mean, if you had prosecuted her for tampering with a mailbox, i guarantee you the case would not have made it to the supreme court twice, and you would have gotten, you know, one out of 18 votes, you know? you made two trips to the supreme court in that case, and it was 18-zip. >> anyway -- [laughter] i'm glad you had your caffeine. >> and to be fair, you may have had fewer prosecutorial options in the case involving the guy who threw the undersized grouper overboard. [laughter] but, of course, we're using you not to refer to you personally, nicole, but the government. >> yeah, but it's interesting because i think those have gotten a lot of press, but there are a lot of criminal cases that the government wins. the statutory construction cases, i think, are harder because those were cases in which someone prosecuted something that the court thought perhaps just did not fall under the statute. the constitutional cases maybe
the government's faring a little better, kind of fourth, fifth, sixth amendment cases i think the government's doing pretty well. maryland v. king was big for the government -- >> huge. >> about the collection of dna samples from people in jail. >> i do definitely recall that case. [laughter] much as i've tried to block it out of my memory. >> i honestly thought you were going to win. >> another -- [inaudible] [laughter] >> thank you, adam. i enjoy your coverage. [laughter] the fourth amendment cases, though, are particularly interesting, right? because these are cases where the court as a whole is really struggling with the question of how do we apply fourth amendment principles to emerging technologies. >> i think that stuff is super interesting, and it pretty much started with jones which was the gps case in which, you know, the court had had precedent up to that point that said if you're out in public, if you're putting out stuff in public, putting out your trash, just going about in the world and the police are looking at what you're doing, there's nothing wrong with that. the question became, well, what
if the police had a gps and could track you everywhere and tracked you for longer a month, was that a problem, and the court said yes. it's not surprising the court said yes. i remember there being a question at oral argument that was asked of the deputy solicitor general, could you put a gps and track one of us -- >> without a warrant. >> and then he should have sat down. >> he did not immediately answer with yes. he said a justice of this court? like -- [laughter] like who would possibly do such a thing, that it was unprecedented. but the logical implication of the government's position was, yes. but then came gand maryland v. king which also was a new technology case in which the government won, and then it swung back with the cell phone cases somewhat recently where trying to look at all the data on a cell phone right away is asking a lot, and the court said it was asking a lot. >> and these are not cases that break down in kind of traditional ideological ways, it bears underscoring. >> yeah. >> i think a lot of it, you know, we talk about it in the
sg's office and out in the legal community, and a lot of it, perhaps, breaks down on what the justices think might happen to them. if they think -- >> or their children. >> -- or their children, then that's a problem. there are cases that have been about things that happen to people who have been arrested, like the folks in maryland v. king had been arrested. and there was a question of whether they could be sprip searched. a justice isn't going to be arrested and put in jail, but it was a case about a car stop lasting too long this past year. well, yeah, what if they were in their cars and someone stopped them? they don't want to wait. >> well, you know, there was some article, dahlia lithwick covers the supreme court for slate and is very funny and entertaining and very insightful, and there was some case in 2005 where there was somebody who had, like, whose client had flushed the cocaine down the toilet, and, you know, the whole question was whether or not the cops had waited too
long or too short to, like, go into the apartment and bust in as the guy was flushing the cocaine down the toilet. and, you know, there was the, you know, this could happen to you argument. and she had this very control line saying this could happen to you rarely works at the supreme court mostly because justices so rarely stock large amounts of cocaine in their own bathroom. [laughter] so rarely was the key phrase. [laughter] and, but that's untrue with all of these electronic cases, you know? the gps case and the cell phone case, they all have a cell phone. wait, you can do that to me. and that's a very -- >> it's not necessarily them, it's them standing in for what they see as a an ordinary citizen -- >> right. >> and the dog sniff cases were like that. there were two dog cases a couple of years back both out of florida, one was about the reliability of drug-sniffing
dogs and ones who got a positive alert from a dog, could you try to come back and have a little mini hearing about what kind of schooling had the dog been through, this whole question. and there was a desperate question about if a police officer was coming to your front door and happened to have a dog with him and it happened to alert, is there some kind of fourth amendment problem with that? and the court said, basically, the dogs are reliable, and that makes sense because they rely on doggings. i mean, we all do in the government. they do, you know, to protect outside the court. dogs -- >> you see them in the hallway. >> yeah, i mean, they do an amazing amount, as i learned through those cases. but the court was not happy with the idea of a dog sniffing at someone's front door, that that was not what a reasonable person would expect. it wasn't a lot of doctrine or prior case law that got them to that point. i think the prior case law favored the other view. it was that they felt pretty confident that they could make their own decision that was not a reasonable thing. >> so this brings up another subject i wanted to cover which is the court's attitude toward
the government more generally. and, nicole, you're the obvious person to ask about this as our representative of the government. you've talked a little bit about kind of skepticism towards the sg's office at oral argument. do you think that there's a sort of greater degree of distrust of the government more generally, of the government's representations and in cases? has that changed with the roberts court? >> i don't really think that's true at all, actually, because i think the court calls for the views of the solicitor general a lot at the certiorari stages, and i think the court has very high expectations of us that, i think, we deliver on for the most part. like in briefs, you know, if there's a 50-state survey that might be relevant, i think they usually expect us to have done it. they ask those kinds of questions at overrule argument, and i think -- at oral argument. you read a lot of decisions where the arguments that the government made prevailed, and the decision reads a lot like the government's argument. so, actually, our win/loss record for this year is pretty
good. how much stock can you put in that, but i think there have just been a few cases in which some member of the court, maybe a few members of the court just thought there was prosecutorial overreaching. it was mostly like the fish case, the bonds, the chemical weapons case that just is various members of the court were upset about. >> i mean, the win/loss record has gone down some over the last few years. to what extent is that attributable to changes in administration and the like? >> i think probably not. i mean, what the court gets every term is a random sample of what people bring to it. and what happens one term where, you know, this year it was a big win for, you know, the liberal end of the court, but if the issues change and if you have, you know, raise abortion next year, that may look very differently. so you get a little snapshot of what the docket brings, and you make a conclusion based on what is really random assortment of cases, and you can't really draw any conclusions. i think nicole was right. i was in the office, in the sg's
office in the 1990s where for four or five years it was my job as your predecessor used to say, i used to get really angry when she said this. she would call me clinton administration lawyer miguel estrada. it was like, i'm a civil servant, linda. but i had to go there ask argue the positions of the clinton administration. and trust me, the rehnquist court was equally skeptical. >> adam, you, of course, watch a lot of oral arguments. do you have any observations on the interactions between the court and the federal government? >> i think there are cases in which the sg's office probably partly as a consequence of the incredibly high quality of their work and how much the court leans on them, if there are aspects of the argument, unavoidable aspects that displease roberts in particular, the chief is likely to make a
point to make it in a cutting way. >> i mean, i think participant of this is perhaps attributable to this is just this chief justice's style. this chief justice, i think, is somewhat gentle at oral arguments. if, for example, a justice uses up a whole bunch of your time, maybe he'll give you a little extra time, and if there's an advocate who's just not getting it, he'll kind of not give that person a pass, but help move the argument along so it's not a bad, painful situation. but the flipside is when he thinks he has people up there that do get it and are prepared and can take it, like, he gives it to 'em. >> right. >> that doesn't always work in our favor. >> and one other aspect of the relationship with the government is the issue of deference to the government when it is interpreting statutes, the issue of so-called chevron deference and, again, i hope everyone is fully caffeinated for the next couple of minutes when we talk about the role of chevron in this court. is the court sort of moving on
that issue? is the court moving away from full-fledged deference to the government? >> you know, i don't know that i can say that there's a trend at all, but i can say that, you know, there are cases that i've argued in which i thought we had a pretty good claim of chevron deference. there was a statutory interpretation question, and we had a good argument that this statute meant what we thought it meant, but we also had agency decisions, good, reasoned-out decisions -- >> and that so rarely happens. >> sometimes it happens. sometimes it doesn't. but, you know, good chevron deference cases, and the court kind of had the action does it want to go the statutory way to decide it, and the court went the statutory route. and in the cases i'm thinking of, we prevailed, the court just said the statute means what the government says, which is great, but they weren't really interested in the chevron deference. and i have been thinking about that, you know, should i think about that as a problem that we're doing something wrong or not, and i think a lot of it is just the court's confidence in its ability to resolve cases.