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tv   Key Capitol Hill Hearings  CSPAN  July 5, 2016 6:30pm-12:01am EDT

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without the access to travel, and then then she drew, and i'm half french, she drew in a sign which meant, a very short open you and it was basically saying that for lack of a better alternative, if they didn't have better access, they may resort to clinics that were unsafe for abortion. i thought it was interesting that she made that point she had made before and break a little bit from the discipline. >> i suspect she might have liked that assignment. the senior justice in the majority, kennedy, gets to make the assignment and he gave it to briar and not ginsburg and i bet she would've loved to have that
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position. >> so i think all of you, i'm not sure if tony is in this category, had other before you became supreme court reporters. how is covering the supreme court the same and how is it different covering other beats? >> were you in that category? >> a long, long time ago i covered city hall in massachusetts and the courts in new jersey. the difference, the supreme court is just unique. you get used to almost never talking to the people you cover which is pretty rare in other beats. editors would always say, can you call up the justice and ask about the red sox, he such a a red sox fan and i said i'll give it a try. i got a note back saying a matter as controversial as this, i must remain silent. even on the red sox, they
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wouldn't talk to me. that's one thing that took a lot of getting used to. but you get used to it. >> to ever talk to the justices? >> we have occasional meetings with them in social events at the court but it doesn't happen very often, not often at all. >> i covered education for a number of years before i started i must say, the difficulty of writing about education is everything is mushy. almost all the language, all the terms are mushy. i found it very hard to pin people down to what does that actually mean. i liked it when i started and i kept doing it for a long time. i liked the fact that people in the law business, they want to get to the bottom of this and
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what does that really mean? would you explain that to us? one of the great things with the law is they deal with, when i was covering education for example, what did the word segregation and desegregation mean? there largely significant. did it mean stop segregating students or did it really mean you have to integrate your city school by desegregating. it's very hard to write about things in the education business because there wasn't the same level of precision and focus. i liked covering the law because people are much more clear and specific when they are arguing some point than trying to be as clear as they can be. >> i've only covered the law but before i covered the court i was the national legal reporter for the times in new york. that job in a way was much more satisfying than this one because you get to hunt around and find stories nobody else is writing about, travel a country and try to open a window on a major issue that hasn't been touched on, tell cool stories, and then you come to washington in your
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writing the same story everybody else's writing. the journalistic impulse is to do something distinctive. here we are and it's a wonderful press court, it's it's been the highlight of moving to washington, but many, many days we are writing the same damn story. you put them side-by-side and they look the same and have the same quote in the paragraph. so there's this subtle frustration and the fact that you don't get to choose your own stories. you're basically doing the stories that nine old people that are in a sense your editors, assigned assigned to you. they just happen wear ropes. >> i think one of the most difficult things to me, especially near the end of the term, you're carrying around in your head four or five cases and they haven't decided it. the court doesn't tell you in advance which opinions they're going to release so you have to sort of bounce around in your head and keep them straight and
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that is a challenge for me. another thing that's not true in other beats is when you're just talking about the supreme, what what we do, like nominations aside, there are no leaks. i think when you cover other beats you're always worried that one of your competitors is going to get a leak. i think here that maybe happened twice ages ago but for the most part. >> every 30 years. >> yes, you're not worried about the leak which my colleagues who cover the white house and the hill, they are. that's a concern. >> don't you think this is one of these classic explainer beats? i think there are quite a few of them. if you cover science or medicine , a lot of what you would want in a medical writer is somebody who understands medical research well enough to
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write a story that explains, this is a significant advance advance for this reason for this is a questionable. i really think the job we do, something like 90% of it is really explaining the court said this and they set up for this reason and the senators that it was a mistake, trying to get some sense of the significance of what they've decided. it is frustrating as adam and others have alluded to. if you want to do scoops of breaking news, you're in the wrong job. i do think it's a worthwhile endeavor to basically try to explain the law and explain what the court is doing. >> on that note i have a question specifically for you, david, that i got from -- the day after the mcdonald opinion came down the last day of the term, there were a couple people from the criminal defense lawyers and they said the
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supreme court unambiguously rejected the conduct not prohibited by the misconduct statute. the supreme court makes prosecuting corruption more difficult. [inaudible] and there was something other than the unanimous decision on the mcdonald charges. the headline should of been supreme court rejects novel prosecution theories that convert traditional services into crime. i went back and looked and your story in the l.a. times, the the the morning was, supreme court makes it harder to prosecute officials. i don't know how much control you have over the headline riders at the l.a. times, but do you think these guys had a good
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point? how did you decide. >> no i didn't. i thought that would be a good headline an aclu newsletter. no, i did think this was a case that that would make it harder to prosecute corruption. i quoted somebody at the university of's chicago who said, you know, if i told you that i gave, secretly gave the chief of staff $1 million to get my client in with the meeting for for the president to advocate a product and you heard about that, i think every person that i know would think wow, that was bribery or corruption. the chief of staff took $1 million to get him on the calendar so he could make his pitch to the president. so the other eight people in the
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country don't think it's a crime and they all sit on the supreme court. you know the facts of the mcdonald case, don't you. this is a situation where the guy, johnny williams, has a private claim plane and take the governor on a cross-country trip and said i need your help with this dietary supplement made out of tobacco. he gives his wife a $22,000 shopping trip dollars shopping trip in a series of favors including calling up and saying i need a $50000 loan. by the the way it's not a loan because it's not money he had to pay back. it's all secret and the governor has these meetings at the governor's mansion to try to get the staff interested in this dietary supplement. the thing is the dietary supplement was useless and no one was interested but he tried he gets prosecuted for
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corruption and they said this is just routine. i lived in virginia for a lot of years and i didn't know this. so another words if i had a book i wanted to promote i could call up the governor and said how about having a product mention or a luncheon at the governor's mansion? so anyway the supreme court said because the jury, it's unclear to me if the liberals signed on to say go back and make it clear that there was some specific favor thought in exchange for all this money or whether you can never have a bribe unless the government actually gives you the contract.
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i'm not sure what it is but i thought this would make it harder to prosecute corruption. i think most the people who prosecute public corruption said the same thing. the criminal defense lawyers, i take it, don't agree. >> i agree and i believe there's two types. one is the notion that the court would have taken this case as error correction only, not to announce legal principle. they certainly wrote it as they were announcing legal principle. the second is a suggestion that this mcdonald prosecution was rogan happening in virginia without the justice department but if you went to the argument, the justice department thought this was the correct interpretation of the law. >> in addition to covering the important decisions at the end of the term, most of you, maybe all of you voted and wrote on more general piece about the court. there was one about how the court was turning to the left.
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i have questions for both of them. on the front page it's showing most justices moving to the left over the past 30 years. i think i sat on the front page. >> it's a little more complicated than you suggest, but yes. >> my question is question is the mix of cases is different every term and some cases get there only because there's a perception that the court may move a certain way. how much can those statistics show? are they showing the court moving to the left are they reflecting what cases came to the court? >> i think that chart you're referring to shows were individual justices are. i don't think anyone would disagree with what it shows.
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the three women are almost in the same place in briar is to the right and kennedy is to the middle and others have gone alito to the right and roberts to the left. lawyers like to have data an individual argument. if you look at the numbers in a large enough magnitude, patterns emerge. they are consistently consistent with our alignments. they have issued more liberal alignments than any court since the worn court. that seems noteworthy to me. that also seems accurate to me. that's consistent with my impression of intuition about the term. data is data. if the numbers are large enough,
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they tell us something. >> we started off talking about justice scalia. it is true that had justice scalia lived, this would look and feel like a very different term because on february 9, the court issued a surprise order on a 5 - for vote to block climate change policy from going into effect and i'll put it on hold for a couple years. live almost never done anything like that before. a big decision blocking the presidents climate change.plan. had he lived, there would've been a 5 - - for decision to reject the presidents immigration order, probably a fairly broad opinion that some of the language would been
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rebuked to the president and then the cases where they tilted the other way because kennedy on affirmative action and abortion. affirmative action what a deadlocked. >> it would've been 4 - 4. your theory holds across except abortion. >> it is true that a few cases could tip your view very much of the term. on this term, your member last year we had a gay marriage decision at the end and the issue the tube decisions on affirmative action and abortion, those are fairly big liberal victories because kennedy tilted to the right. they think in the end kennedy
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was convinced that the abortion, the texas abortion law couldn't be defended as a health regulation in the texas affirmative action plan wasn't narrowly tailored plan. at the end of the term what you say about a term that was a little of this and a little of that. it seems like a more liberal court. >> thinking about what happened, the contraception contraception case comes out differently too. at a minimum the public union case was going to do have a devastating blow.
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>> it seems to me what it was was a term that didn't go to the right, sort of what you are saying. everyone thought they could overrule so they didn't succeed but they didn't make the law any more liberal than for 40 years. they thought they could push back against the right to reproductive choice. >> they passed the statute because they thought they could get away with it. >> every time some of the on the right does something it's devious and every time someone on the left does something they're doing god's work. >> does the right to abortion get more legal protection now than when it passed? >> apparently the right to abortion.
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[inaudible] >> i think it's in a safer place than it has been in a long time. i don't see that changing back. you never know if president trump appoint somebody, but i think we sort of talked around it, but i wonder what people's theories is on wide justice kennedy moved on affirmative action and on abortion rights. was it a centrifugal force or the balance shifted to the left because scalia died and he felt he had to go there or what do you think it was. >> you had a bit of a theory about the two justices who grew up in california.
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>> our paper did take a little more of the california angle than i would've wanted it to but i do mention it was a surprise, there's two california natives on the court. they both went to stanford and harvard as well. there's a long story here in the short story. over a lot of years, when i've talked to people, who was your boss friendly with around the building or whatever, i was always surprised how many times people would say, they seem to be very friendly, they sing to spend a lot of time talking and i never quite could figure that out because they were always on opposite sides. briar is the guy who worked for ted kennedy in the senate before he became a judge. he likes to talk about those years. one of the things he always talks about with kennedy was how even though kennedy is the liberal lion, kennedy really
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liked the idea of being able to work with republicans. he'd find a republican who is really interested in school the many defined republican who is really interested in some health care program, he loved being able to work and find republican that they agreed on something and find a way to do some legislation. i always thought, when he told the stories, that sort of something he values very much. he always talked about how he was in morning after sandra o'connor left the court because he was somebody who was definitely not a rigid ideologue that cared about the doctor. she was somebody who cared about the facts and had, you wouldn't know whether she was going to tilt laughter tilt right. it kinda depended on each case. briar love to talk with her because he thought she was reasonable. he's done a little of that with kennedy.
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kennedy has, on these areas like abortion and affirmative action, kennedy does have a little bit of a middle position. the conservatives thought, scalia, thomas, any use of race is unconstitutional. that was not kennedy's view. he thought diversity was a compelling interest but it had to be a really narrow, so can you convince him that the texas plan is narrowly terror tailored or is there too much of a thumb on the scale? >> i just think he and breyer could talk these things out and he ended up signing briar the abortion case. i think adam mentioned earlier, i think it's something ruth ginsburg would love to have done, love to have written but he knew briar would write one of these very matter-of-fact opinions, no rhetoric, he said
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the evidence shows these regulations really are not justified. the cost is very high and the benefits low therefore texas loses. that's exactly the kind of opinion that kennedy could agree with. he wouldn't like an opinion that really slammed the texas legislature. let's show the two things we knew about kennedy. he had never, in his time on the court voted to uphold any affirmative action program. he had voted to uphold 20 abortion restrictions and voted against only one. this is someone where the pre-decision data really suggests one set of outcomes and we get a big surprise going the other way. >> a lido, in the affirmative action case called him on it. to the extent that there was a surprise, particularly after oral arguments with kennedy, to the extent that there was a surprise, particularly after oral arguments with kennedy, i think he said, remember this is
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the second time we had gotten the affirmative action case. >> he didn't seem to like it. he said this is the same case or something so i think judge alito said, what happened. >> something strange is going on i thought that was very interesting that alito called that and he called the early. >> another thing that was strange about judge alito's dissent, i think it was probably the first oral dissent that ever focused on race and severability clauses. >> thomas did defend the law on the texas abortion restrictions, alito was joined by the chief and really only talked procedure. they didn't seem to be prepared to defend this law. >> so, how do you cover that? do you say she mounted a
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vigorous oral dissent? >> i actually do not say. >> i think my at usa today, when i cover the supreme court, people would call me the reporter in charge of latin phrases. you have you have to work them in some time. >> so how did you cover the oral defense or defense in general because it was almost entirely procedural. >> briefly. >> i think i gave him one sentence. it's hard to write about it dissent in the case like that because there's a lot of other things to say, but if you spend all your time saying this case was procedurally screwed up and we shouldn't of decided it, how many people want to read about that the day after big decisions
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>> so although justice thomas had 18 dissents, more than one third of the total number of dissents written by all the justices and he had 39 signed opinions which is more than justice kennedy and the chief combined. why do you think he is writing so much. is he trying to make up for never asking a question from the bench? how much do his separate opinions in general affect your reporting? >> when you look at the case, i was downstairs, i wasn't upstairs when he asked a question for the first time in ten years, that was a different case. i think what was interesting is he hasn't asked a question and
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oral argument. he reads his opinion with his baritone voice. when he gives public appearances, he talks a lot, he had an appearance of the judge from the federalist society couple years ago. he is not shy to talk but he has given various reasons why he doesn't and one of them is that he feels like sometimes the justices are doing too much talking on the bench. in that particular case, it came soon after the death of justice scalia and the court had declined to take up the second amendment issue in the case but it meant something to him so that triggered him to ask this series of questions, ten questions and may be, he's true to his word. he wasn't on the bench and scalia probably would've asked that line of questioning.
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he wasn't wasting anyone's time as he would put it. right. then i felt like that decision came down come the last day i feel like i haven't given enough time to his dissent in that case but i thought it was very interesting because just because he doesn't ask questions and oral arguments, but is this notion that he's shy or you don't hear him speak. you can hear him speak. i thought that case was interesting of him sticking to his word. all asked the question when i think a question needs to be asked and that nobody else is asking. >> i always think of thomas as sonja soto mayor. different justices view the job very differently. we've had a couple on the right, justice thomas and justice scalia and adams have a good
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piece today on justice soto mayor, she is speaking to a different audience and trying to say, look, there's a real problem in the criminal justice system. she's writing those dissents frequently alone. but she is speaking to an audience out there and justice thomas' always wanted to do that but from the time he arrived, he has always had a sense of his own contrarian view. he's a court of one. he's always had a distinctive view on all sorts of things and he loves to serve those opinions that they all my colleagues are wrong and they've been wrong for 60 years. he goes back and says we should come back and interpret this as we did in the 1920s. it means taking goods across state lines, doesn't mean regulating all these businesses. he's always had that instinct say this entire area of the law is wrong and here's how it should be.
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that's what he likes to do. there's quite a few who are much more focused on in the middle, how can we decide these cases but there really are justices on both wings that are sort of speaking to a larger audience to say our court is completely off base in this whole area of the law. >> i saw a law professor run a word search, if you run that set of words it'll pull up all the things he'd like to see overruled. in an appropriate case we should examine those and it would take out half the body of the constitutional law. :
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>> it may not be so crazy but it certainly is, you have been doing it wrong since the 1930s. and he thought this lifetime possession, lifetime ban on firearms by people convicted of certain crimes was unconstitutional, in violation of the second amendment. and even welk, against abbott which had to do with how states decide who to count when it is doing reapportionment and setting aside the legislative district, he says the court has never provided a sound sound basis for the one person, one vote principle. let's just go back for how some votes get more count than other counties. it's an interesting idea, is it worth reporting on either when you report on a particular case
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or in a more general way. do you talk about these? >> it is definitely worth reporting, justice justice thomas is the justice who does not believe in starry -- speaking in latin phrases. he just thinks that we line our president blindly is a dumb idea and he is willing to upset the apple card quite often. sometimes it put him way outside than mainstream of legal thinking but it certainly deserves coverage. it is certainly an important fact to know about one of the nine justices. >> i think he is more interesting as a legal thinker than as a judge. sometimes when he actually has to decide and judge a case, we had this case about the juries and the evidence coming forward
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that the prosecutor had color-coded the jurors -- so to speak, each potential juror and it was unquestionably clear that they were trying to eliminate all of the blacks from the jury. so when this came at the court had no problem, i guess it was a 721 decision saying if we are serious about not allowing -- this is a classic example. it was nonsense to suggest that there is legitimate reasons, but justice thomas writes dissent saying i'm not convinced that they struck each of these that black jurors were seemingly transplant bony -- bony reasons
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i write about these that i is hard to think that was the right call. >> so we have a little bit of time left, let's talk talk a little bit about the future. in my advertisement for this panel that went out by e-mail to board members i said will the senate hold a hearing on judge garland's nomination in december if hillary clinton wins in november. if donald trump trump is elected will he really nominate judge judy for the supreme court? more seriously do you have any thoughts about what the future? >> so i do not cover the senate. i cannot speak to that. i will say though that i have talked to conservative lawyers, conservative activist who have
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said there has to be a vote, it's a lame duck session. that's a they told me on background. but again i do not cover that. so i don't know how they do that. >> i don't that. >> i don't know anything about the senate either and this is an assumption, but assuming they are rational actors, if the republicans know they're going to base hillary clinton as president and they have the opportunity to confirm a moderate, 63-year-old. they would be insane not to. >> i agree with that for the same reason. it's just a guess, but america garland, he is the kind of judge that all of the republicans would think it's not so partisan situation that this is the best were going to get, he's a very fine fine judge in a very fine person. he is not as liberal as some, almost anybody that hillary clinton would pick. so i would think as adam said that if mrs. clinton would be to be elected in november, i would think that some republicans think maybe it's a better idea to go ahead and confirm marek
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garland. >> another change, high profile is that the judge after retired after five years and his chief deputy will be that acting at least till next spring. do you think that is going to make any difference to how that office operates or what goes on with the court. >> i do not think so. they worked together for quite a while and done really ran a tight ship and they are in a sense coasting, the docket for the next term is not that huge there's not that many big issues big issues to face so they will just sort of muddle through to
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the end of the obama administration and then somebody else will come in. >> the thing -- i was interested that more than once the justices allowed were really at the end to make a closing statement. they do not interrupt him. i think they had a lot, they they respect to good lawyers because that makes their job a lot easier and they like people who come prepared. i always thought, they they give him a lot of deference at the end to state his case without interruption. i think maybe more than one of them probably was not pleased with the way that he was treated with the healthcare and particularly as we said earlier with that at that went out. >> he gave a bunch of interviews as he was leaving. he he made the point that it was a
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self-conscious decision and in most cases to keep it understated and businesslike and he thought that, and i think he is right about that, that earned him the opportunity occasionally to move the dial to something a little more rhetorical and emotional for something that mattered to him. has they were saying not every advocate would be given the deference. i think here that deference by five years of outstanding service. >> we have about ten minutes to go people have questions. marsha how should we handle it? raise your hand in the michael come to them? so if you have a question you can let yourself be known. >> hello. often times it seems often to very important decisions will be released on the same day. for example this year the whole health and the. [inaudible] decision came down on the same day. i have two questions. one, do you think there is a
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strategy on the court in timing the release of the decision to see that one of the decision does not give as much coverage as the other. the second question, is you is the reporter, do you advocate with your editor to make sure that the lesser decision indicates -- if it coverage it deserves? >> well as i said before with the one being decision i thought it was interesting and i did write it. i did not write it as quickly as i got the other ones out. so i think that is an important thing to do so particularly that dissent sometime. i think the justices say opinions are released when they are ready.
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i was pleased last term that we did not get too big ones on one day because that makes life complicated for our team that is busy trying to figure out what they say. this term when we got affirmative action and immigration at least immigration was a four-four. so we did not have to go through. so you're in that press room and they come out with the affirmative action in your reading and working on it and then didn't we get the four foreign dollar general? so back at and there's a for foreign dollar general is someone says that's not it. so then you race back in for the four-four. it's a busy day. but it's i absolutely try and our team at cnn two, we do not want to lose that waben decision
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because it was important. >> do you have high school type nightmares during the last term like i came without my pencil, i miss this decision? >> absolutely. those last those last two weeks for me are very difficult particularly this term. not only do you want to sort of know every way that the court could rule so you're not surprised, that's a tough one if your surprise. but then we had the added burden of a potential of a for 4-4 or maybe -- and so you know there's not a high percentage of that happened but you have to be prepared for. so it's a little nerve making, the last couple of weeks. >> you asked if there is a strategy, i don't appreciate it if there is but it is hard to know. this was a pretty bad year on that score. some years they have done better with spacing them out at the end.
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i would say for myself, i find there are certain number of cases that i will save, like a beat level interest and waben, the gun case was in that category. on a slow day, or i would love to write about that case. it's an interesting small spin on what they said before, anybody who is guilty of a misdemeanor crime of domestic violence, no gun, this was a question about what if he pleads guilty and its recklessness. so recklessness is part of it. so it to not change the lawn a big way but if you put the got words gone and the net domestic violence in the same story people will read it. it's an interesting subject. on the other hand, if the court doesn't the same day they decide in affirmative-action and immigration case, i did not write about it. i think we we put something in our papers about a five those are two big stories that i had to devote a
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lot of time to. there is another case that was pending about the drunken drivers and breathalyzer tests and blood test, thought that's a a great subject because everybody can immediately understand that does the police officer need a search form before requiring somebody to take a breathalyzer. the answer was no, sick - two scoremac. but what about a blood test, it's different., it's different. it's an interesting subject but again, i took the view that i could only write to big stories into the minute easily. i can type faster and her third one but there's a lot of potential to screw up. so i thought i'm going to do too big stories and not the third. when you get one of these years where there is not a lot of big decisions it is really irritating and frustrating that they all get to bunched up on two days at the end. >> any other questions?
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>> to what extent to think the justices, particularly justice justice kennedy are influenced by public opinion? >> justice ginsburg says and i think it is a nice raisin mrs. chu of all of them. they are not influenced by the weather republican opinion but they are in place by the climate. so think about same-sex marriage. ten or 11 years ago when the massachusetts supreme judicial court first announced that there is such a ride in massachusetts it was an earthquake. nobody on that day would have thought that a decade later the supreme court would announce it's a federal constitutional right. but public opinion move so fast. there's been so much activism and litigation that a change the climate and allowed by people, including justice kennedy who wrote to come at a different view of the world the what the constitution requires. so i do not think they care about momentary blips in public opinion.
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i do think they care in a general way. they live in the same world we do. they look around and come to conclusions. >> i agree with that. i remember to kennedy kennedy would be very much aware of the fact that if they are willing that there is a constitutional right to gay marriage, is that changing the law in ten or 12 states, or 45 states? remember by the time they finally got around to ruling that, two thirds, three quarters of the states with through legislation and a court gay marriage was already legal. they were making a national pronouncement to say, this is a national role, national constitutional right. i think just like the public opinion switched a series of state laws had switched and so they were not sweeping aside 45 laws in in 50 states. this is a little harder to prove but i have to think that one reason they keep turning down second amendment cases is because the climate on guns so
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fraught. they do not want to be issuing a decision morning after mass shooting. >> we have time for one more question. >> you mentioned the liberal black of justices and if they're going to stick together. after the upcoming election of the court continues to move to the left do you think we'll see some differences in opinion, some breaking out of that block? >> i think if we get a justice garland, they're they're going to be very tightly bunched on the left. one question that i would love to hear other people's thoughts on is assuming there is a solid -- liberal justice on the supreme court with a do
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something with citizens united or heller? the question on this goes back to the point art was making, the left is mostly blocked movement to the right. what. what if the left actually has five voices to the left, which path to the left might they take? that it's an interesting question to think about going forward. >> i sure agree that down the road we do not know whether we'll see this, down down the road there will be split on the left to. justice soto meyer or others may say we ought to go further and some of the liberal justices will say i'm not ready to go that far. so you'll see a split of concurring opinions. as adam has correctly said, the the have been sort of blocking things that they think the conservatives want to change the law and a big way. if there are a majority short justice soto meyer has a different view of things than justice breyer does. >> it is 158 and i'm sure our friends at c-span would be happy if we wrapped up. thank you all very much for coming. we see you again next year.
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[inaudible] >> this is a live shot of a trump campaign rally in raleigh, north carolina. we are waiting on the arrival of the candidate. he is expected he is expected to be joined by tennessee senator, bob corker. this this is live coverage on c-span2. ♪
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♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ ♪ >> while we wait for donald trump to arrive at this campaign rally in raleigh, north carolina. it looks like it's going to be a few minutes will show your portion of today's "washington journal".
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wh >> joining us now is dennis rosn the former white house middle east advisor serving from 2009-2011. >> it is nice to be with you. >> talk to us about the eventsek of isis this past weekend.about what do they say about the condition of what is going on in the middle east concerning isis? >> guest: i think what they say more than anything else is that while isis is being sent back on the ground which is clear, with iraq they have lost nearly half the territory that they seized, and syria may be 20% of the territory. they're being squeezed financially, but that becomes the precise moment at which they want to show they are not being defeated. the leader has said that we will be tested, the test of our faith is that we will suffer adversity , so they're trying tout
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explain that there's going to suffer setbacks but one way to prove that they still have a divine mandate is to show that they're not being defeated. one way to demonstrate are not being defeated is to be able to inspire, organize or orchestrate attacks that we have seen. you have seen it during ramadan, they're trying to create the message that this is the moment that you should be carrying out these noble deeds. and this is a manifestation that they are there. it is not just as john brennan said that theyey want to show that they can still dominate the agenda, it is their way of showing that they are not being defeated and they can lasp out anywhere. >> host: so the frequency of what we see the last few days is not surprising? spee2 it's it's not surprising, it's disturbing for sure. it doesn't mean it's necessarily the wave of the future. the more they can be set back the more they lose the symbol of their success. the symbol of their success is a mozilla and
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raqqa which is the manifestation that they're having. when they lose the symbols of their success it's hard to continue to maintain the argument that they have a divine mandate. the capacity to inspire and recruit is going to beke affected the more they can be set back in terms of key symbols of their success. to carr as they go through the process of being set back were going to see them having more of a carrying out the attacks. >> host: what your attribute the losing of ground? the >> guest: in terms of their sheer numbers they've never been that large. number two, they do they do not have a great conventional military capacity. and they are facing what we havh done a lot of training and we are hitting them with a lots of airstrikes, the commendation of being hit on the ground in iraq. they have now lost ramadi andatr falluja. the kurds that we are backing and syria have set them back as
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well. so they are facing forces who are backed also bias and innocence were inflicting and have more capability than they do. >> host: so the current of approach that the administration is taking is the right approach or should it be changed? >> guest: is really has an effect.s taking i the question is, could you do more and succeed more quickly. the question is what replaces them? if you defeat them but a vacuumt is created and their aftermath and you'll get some of isis. one of the things that we need, one of the things that i'vehingi argued for is that we clearly need more sunni by an, more sunni involvement in on the ground.. they claim to be the predictors of the faith and of the sunnis, part of our problem is key sunni tribes and governments and leaders, and and more of the occupation with the iranians when it comes to most of the
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region and in syria you have a lot of syrian opposition that is more concerned about assad than they they are about isis are about equally concerned. our priority has been isis, our priority innocence is not been iran, not been aside. there are reasons for that. so long as we do not seem toso share the same priority as the sunnis do throughout the region were not going to get them involved the way we need them to be involved. we need them to be involved mentally for the foot soldiers on the ground but ultimately theycan discredit isis. the she is can't discredit isis because isis overall looks to the she is is being rejected is. the fact that you need sunnis to discredit them, to disk creditit the way they look at -- to
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discredit what they represent. the client isis they kill many more muslims sunni and shiite than anyone.s, if anyone is apartheid isis -- if you want to ask questionsu. about isis and what it means for u.s. policy. on , senator tom was on meet the press on sunday talking about isis, giving at least his thought on the approach the u.s. should be taken to activities overseas. i'll let you listen to what he has to say get a response. >> we cannot simply contain it within a small part of syria, they will continue to launch terror attack around the world not just in paley's is like bangladesh and turkey but western europe and then in the united states as well. or they will inspire those kind of attacks. if the islamic state is losing, they are defeated, there defeated in iraq and syria or libya which is maybe the most
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dangerous and well-developed cell today than they will not inspire so many attacks. were not responsible for the domestic security of every onege of our allies but ultimately the way to stop attacks on the world is to deny the terrace a safe haven they need at a limited their leadership from the battle. just like we did with al qaeda much of the the last decade. >> guest: what i think what he is saying is in much in linee what i'm seeing and should be told it's in line with what the administration the same. if they have an operational space in which to plan, and recruit, if they have the symbols of success, what isis is a competitor with al qaeda. they are fighting each other, their claim in the state truth, their competitors from that standpoint. the differences al qaeda did not think it was the right moment to have an islamic state, to determine the caliphate. obviously isis did did and has used that and the image of an
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islamic state is a manifestation that they represent something that we have not seen before. muslims have not seen before. what they're trying to say is, look, we embody embody the perfective form of islam, join f us. they need to carry the fight to us because part of their claim, they claimed to have a divine mandate, they claim all of those that joined them are divine messengers. >> we're taking you live to raleigh, north carolina to raleigh, north carolina for a donald trump campaign event. donald trump is taking the stage at his campaign event in raleigh, north carolina. ♪ ♪ ♪ >> thank you very much. thank you you very much. wow, look at that. i love you. i love you north carolina, i love you. unbelievable.
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you know, it is an incredible thing, the system is rigged but we are still happy to be together, right? totally rigged. what a system, what a group out there. you watch what's going on will be talking about it, but before i do, a great friend of mine, somebody respected by everybody, senator bob corker. come on up bob. [applause]. >> i was not going to say anything. i just came to visit. [laughter] but i have to tell you something, the rallies that i have back home are not quite like this. it's pretty cool. it's unbelievable, isn't it?
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[applause]. i had a remarkable day today. pretty remarkable day. it says a lot about a person to meet their family, spent time with their kids if you will, he veronica and eric and their son-in-law. and to be around people that have worked in the trump organization for 25 and 30 years to see the respect for the person they have with a work with, the father and father-in-law that they have, to see how he treats the people around him, so many times in this campaign people become caricatures of what the media makes them and all too often
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after a race is over people realize never really knew the person. somebody once told me it is not you know in life, it is how you know them. i had the incredible which today to spend time with this man, to spend time with his family, and to spend time with those who know him so well. i figured out the reason that you love him so much -- [applause]. [applause]. i am taking up his time, let let me just say this, the reason you love him so much is because he
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loves you. he loves you and he will -- and the republican nominee for president, donald trump! [applause]. great guy, great guy, great person. so i have to tell you a few things. numbers just check came out just now, number one between very well in the polls, that's important, okay. [applause]. very, very well. but you know, the numbers just came out that during the primary system during the primaries. . .
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what you witness today and over the last week, from bill clinton going to the plane, just happen to be there, just happen to be there. i wonder how long he waited, but for bill clinton to go to the plane and then to have what happened today where essentially i thought everybody thought, based on what was being said, she was was guilty. she was guilty. and it turned out, were not going to press charges. it's just really amazing. but i'll tell you, i'll tell you that we have a rigged system folks. i used to say it during the primaries, we were all together. i won north carolina big-league, because of you.
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[applause] not only did the republican party go way up from what was four years ago, but donald trump, in in the history of the primary system, republican party, with 17 people running, a lot of people don't understand i got almost 14 million more votes than anyone else in the republican party, more than ronald reagan, more than the bushes, more than richard nixon, more than dwight d eisenhower, we have the highest vote count in the history of the republican party. that was such a big thing for me. we 137 states, i just got stronger and stronger and i think were stronger now than ever before. we are fighting a very dishonest
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media. do we have a protester? okay, get them out please. [inaudible] we love our protesters, don't we the only time i get the cameras to turn. the only time we get those cameras to turn. the the size of this place. this is really great. get him out. get him out all right, thank you thank you. that's all right, take it easy.
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you no, if i could. >> guest: these people for a little while, what do we want only think of it? we went good education and we want us strong military and we want strong borders and we do want the wall and we want to keep our jobs in north carolina. [applause] we want to keep our jobs in north carolina look at what's going on folks. were going to build a wall, don't worry. who's going to pay for the wall? you better believe it. they're going to pay. they'll be happy to pay. if the right person asked them, they'll be happy to pay. if the wrong person asked them, like cricket hillary, they're not going to pay, but she's never going to ask. she's never going to ask and i'll tell you why. when it comes to trade, and i just got a list of companies and
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they've gone down to mexico and it's a disgrace what's happening it is a disgrace what's happening and were going to stop it and it's not to happen anymore any longer. were losing our jobs were in the stop the going on. we will stop it so fast your heads will spin. remember that. your heads will spin. we'll talk a little bit about trade later. the trade is so easy. the trade of all of them, were to knock the hell out of isis. we have, by the way, we have a president who's out campaigning for cricket hillary clinton and he should be home working on isis where the threat is getting worse and worse.
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he should be working on trade, he should be working on the borders. people are blowing into our country from lots of places, but from syria, no more. they're not coming. we don't know who they are, we don't know if you where they come from, they have no documentation, they have no paperwork and who knows, but you know what, we can't take any more chances folks. if you look at cricket hillary, she wants to increase the immigrants coming in from syria. again, they could be isis. this could be the all-time great trojan horse. you know the story of the trojan horse. this could be the all-time great. look at what, one person has
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done in orlando. just take a look. one person. look at the horror that that person has wreaked on our country. the gay community, the lgbt community nobody can even fathom it's one bad apple. we have many people coming in and you know what, it just takes a small percentage but there's something going on and guess what, we have a leader that doesn't even want to discuss the name of the problem and the problem is radical islamic terrorism and it's a problem. [applause]
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we've got hillary clinton who is weak, who is ineffective, shall never be able to do the job, her judgment is horrible, look at her judgment on e-mail. who would do it. look at her judgment. her judgment is horrible. her judgment is horrible. now who said that about hillary bernie sanders said her judgment is bad. she's got bad judgment. now let me tell you, whether it's isis, whether it's trade, whether it's borders whether it's jobs, it's going to be four more years of the same thing. the last thing we need is another clinton or an obama clinton in the white house. we have a mass in this country. we owed $19 trillion, soon to be
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21 trillion. the debt has doubled under obama. it has doubled. wait until you see. we are sitting on a mass and it has to be taken care of. the way gets taken care of, at least that aspect of it is jobs. were going to bring jobs back to north carolina. were going to bring jobs back to our country. it's going to be america first, not all these other countries that don't give a damn about us. it's going to be america first. america america america first. we've got a person in the white
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house that's having a lot of fun. i watched him today. it's like a carnival act. moving around, here's the whole thing, great, i'm saying this is a president. we need a president who is going to bring us back. we need a president that's not going to be divisive. we need a president that's going to take care the african-american community. remember that. obama is all talk and no action. we need a president that's going to create jobs for hispanics who don't have a job. we need a president who will turn our country around an obama cannot do it and hillary clinton will be even worse, believe believe me. she will be even worse. i mean i brought up something last night.
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i heard they are flying down on air force one. air force one is a very old boeing 747. it sucks up a lot of gas. a lot of fuel. boy the fuel bill. you turn on that engine it's a lot of money. i said let me ask you a question, why is she campaigning with the plane of the united states? why is she campaigning and why is he allowed to come down, get on on that very, very expensive plane, he talks about the carbon footprint, okay. he wants to solve the carbon footprint but he gets on an old boeing 747 that is spewing stuff into the air. he gets her on the plane.
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[inaudible] >> as you can see we are having some technical problems with this event. we will try to fix it and resume our live coverage soon. we will move on an earlier this afternoon james comey said he will not recommend criminal charges against hillary clinton regarding her handling of private e-mail on a personal e-mail server. he announced the completion of the investigation and said secretary clinton and her colleagues were extremely careless in their handling of classified information. here's more now.
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>> good morning. i'm here to give you an update on the fbi investigation of secretary clinton's use of personal e-mail system during her time as secretary of state. after a tremendous amount of work over the last year, the fbi is completing its investigation and referring the matter to the department of justice for a prosecutive decision. what i want to do today is three things. i want to tell you what we did, i want to tell you what we found and i want to tell you what we are recommending to the department of justice. this is going to be an unusual statement in a couple of ways. first i will include more detail about our process than i ordinarily would because i think the american people to preserve those details in a case of intense public interest. second, i have not coordinated the statement or reviewed it in any way with the department of justice or any other part of the government.
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they do not know what i am about to say. i want to start by thanking the fbi employees who did remarkable work in this case. once you have a better sense of how much we have done, you will understand why i am so grateful and so proud of their work. first, what we have done. this investigation began as a referral from the intelligence community. >> it looks like we can fix the technical difficulty to the live campaign in raleigh north carolina so we take you back to donald trump - we have to defend our country. we have to build up our military again. it's really depleted, it's in bad shape and were going to build it up. we will take care of our vets like you wouldn't believe because our vets are being mistreated horribly. we have a plan that has received universal, i'm the only one, i
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made a speech, i won't even mention where. i made a speech and i said let's raise some money for the vets. we ended up raising $5.6 million for vets. i gave a million in the press comes down, well he should given here or he should have given this, we raised $5.6 million for the vets. i am so proud of it. i love the vets. i have received more accolades, were sending groups that never had money, 100,000, 200,000, and in 200,000, and in one case 1.1 million. in another case 250, 75000, 50000, all of these groups, thirtysomething thirtysomething groups. it was so beautiful to see.
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i, you, all of us, we have received accolades. i say all of us because this is a movement. this is not like a normal situation. look at this room. because room. look at the size of this room. there are thousands of people, and i got wet raining getting off the plane. i want to tell you, it was actually beautiful. now you know it's my hair because any hair that could withstand that wind, the pilot, it is my hair. the pilot said sir, i'd wait about ten or 20 minutes before you get out of the plane. he said there are 35, 45 mile-per-hour gosper and i said no, when i clean to keep people.
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>> as you can see we are having technical problems with this live event in raleigh north carolina. we will be trying to fix it and we will show you some information about some other programs on c-span. >> c-span's washington "washington journal", live every day with news and policy issues that impact you. coming up wednesday morning, texas republican congressman will react to today's recommendation about the fbi that no charges be brought against hillary clinton as well as discuss the vote on gun legislation in the house. then michigan democratic congressman friend i will talk about the latest flint michigan crisis and the congressional response to the orlando shooting in the 2016 presidential campaign. be sure to watch "washington journal" beginning live at 70 strength wednesday morning. join discussion. on american history tv on c-span three, saturday afternoon at 150 eastern, memoirs, you always have to be wary of because not
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only are memoirs, just by their genre bound to be self-serving to a degree, they also, most of these people did not want to disclose too much and in some cases it may actually dissemble and try to mislead people. >> historians talk about the techniques used behind the cia and russian intelligence service to gather intelligence dating back to the cold war and how that has changed since the 911 terrorist attack. in examine of race relations in memphis. >> many thought this was happening, a full upscale upscale black rising and they panicked. mobs of white men, arms armed with pistols and clubs march to the scene of the shootout and began shooting, and beating
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every black person they could find. >> the 1866 riot that resulted in the master of several dozen african-americans in the assault on women, and the assault of colored troops stationed near the city, walter isaacson offers an argument on benjamin franklin innovation and networking method in what he calls america's national character. >> his view was that small businesses and startup would be the backbone of the new economy. indeed, one of the things that his group did was they made a set of rules for how to be a good startup entrepreneur and innovator. >> sunday morning at ten, on road to the white house rewind for america, the time has come at last.
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>> you know that every politicians promise has a price. the taxpayer pays the bill. the american people are not going to be taken in by any scheme where government gives money with one hand and takes it away with the other. >> the 1972 republican and democratic national convention with richard nixon accepting the gop nomination for a second term and south dakota summit senator accepting the democratic nomination. for our complete schedule go to cspan.org. >> earlier today fbi director james comey announced he will not recommend criminal charges against hillary clinton for her handling of classified information on private e-mail servers. speaking to reporters in washington, director comay announced completion of the investigation and said secretary clinton and her colleagues were extremely careless in their
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handling of the e-mail system. >> after a tremendous amount of work over the last year, the fbi is completing its investigation and referring the matter to the department of justice for decision. what i want to do today is three things. i want to tell you what we did, what we found and i want to tell you what were recommending to the department of justice. this is going to be an unusual statement in a couple of ways. first i'm going to include more detail about our process than i ordinarily would because i think the american people deserve those details in a case of intense public interest. second, i have not coordinated this statement or reviewed it in any way with the department of justice or any other part of the government. they do not know what i am about to say. i want to start by thanking the fbi employees who did remarkable work in this case. once you have a better sense of how much we have done, you will
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understand why i am so grateful and so proud of their work. so first, what we have done. this investigation began as a referral from the intelligence community inspector general. in connection with secretary clinton's use of a in e-mail server during her time as secretary of state. the referral focused on whether or not classified information was transmitted on that system. our investigation looked at whether there is evidence that classified information was improperly stored or transmitted on that system in violation of a federal statute that makes it a felony to mishandle classified information, either intentionally or in a negligent way. it's a misdemeanor to knowingly remove information from storage facilities. consistent with our counter intelligent responsibility, we have also investigated to
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determine whether or not there is evidence of computer intrusion by nationstates, or by hostile actors of any kind. i use a singular term, e-mail server in describing our investigation. the terms turns out it was more complicated than that. secretary clinton used several different servers during her four years at the state department. she also used numerous local devices to send and read e-mail on that personal domain. as new servers and equipment were employed, older servers were taken out of service and stored in various ways. piecing all of that back together, the game shows how personal email had been used for work and it was a painstaking undertaking requiring thousands of hours of effort. for example, when one of her servers was decommissioned in
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2013, the e-mail software was removed. that didn't remove the e-mail content. it was like removing the frame from a huge unfinished jigsaw puzzle and then dumping all the pieces on the floor. the effect was that millions of e-mail fragments ended up in the servers unused space. we searched through all of it to understand what was there and what parts of the puzzle we could put back together again. fbi investigators had all of the emails that sec. clinton provided to the state department in 2014. where email was assessed as possibly containing classified information, the fbi referred that e-mail to any government agency that might be an owner of that information. that agency could make a determination as to whether the e-mail contained classified information at the time it was sent or received or whether
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there was reason to classify it now even if the content had not been classified when it was first sent or received. that sometimes referred to as up classified heard from the group of 30,000 emails e-mails returned to the state department in 2014, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. eight of those chains contained information that was top-secret at the time and 36 of those chains contain secret information at the time and eight contained confidential information at the time. that's the lowest level of classification. separate from those, about 2000 additional e-mails were up classified to make them confidential. those emails could not be classified at the time they were sent or received.
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the fbi also discovered several thousand work-related e-mails that were not among a group of 30,000 e-mails returned by secretary clinton in 2014. we found those emails in a variety of ways. some had been deleted over the years and we found traces of them on servers or devices that have been connected to the private e-mail domain. others we found by reviewing the archive government accounts of people who had been in government employees at the same time as secretary clinton. including high-ranking officials at other agencies, folks with whom the secretary of state might normally correspond. this helped us recover work-related emails that were not among the 30,000 that were produced to the state. still others we recovered from that painstaking review of the millions of e-mail fragments pumped into the black space of the server that was decommissioned. with respect to the thousands of e-mails we found that were not among those produced by the state department, agencies have
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concluded that three of those reclassified at the time they were sent or received, one of one at the secret level and two at the confidential level. there were no additional top-secret e-mails found and none of those have since been classified. i should adhere that we found no evidence that any of the additional work-related emails were intentionally deleted in an effort to conceal them in some way. our assessment is that like many e-mail users, secretary clinton periodically deleted e-mails or emails were purged from her system when devices were changed because she was not using a government account or even a commercial account like gmail there was no archiving at all of her email so it's not surprising that we discovered e-mails that were not on secretary clinton's system in 2014 when she produced those 30,000 some e-mails to the state. it could also be that some of the additional work-related
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e-mails that we recovered were among those deleted as personal by her lawyers when they reviewed and stored her e-mail for production in late 2014. lawyers doing the sorting for secretary clinton in 2014 did not individually read the content of all her e-mails as we did to those available. instead they relied on information and used search terms to try to find work-related emails that remaining on her system at the end of 2014. it's highly likely that their search missed some work-related emails and we later found them. for example in the mailbox of other officials or in the space of the server. there's also work-related emails but they did not produce to the state and we did not find elsewhere and are now gone. they deleted all e-mail they did not produce to state and the lawyers then clean their devices in such a way as to preclude
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complete forensic recovery. we have conducted interviews and done technical examination to attempt to understand exactly how that sorting was done by her attorneys. although we don't have complete visibility because were not able to fully reconstruct electronic record, we believe our investigation has been sufficient to give us reasonable confidence that there was no intentional misconduct in connection with that sorting effort. of course, we interviewed many people from those involved in setting up the personal e-mail system and maintaining the various iterations of secretary clinton's server to staff members with whom she corresponded and those involved and finally sec. clinton herself. last, we have done extensive work to try to understand what indications there might be of compromised by hostile actors in connection with the personal e-mail system. that's what we've done. now let me tell you what we
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found. although we did not find clear evidence that secretary clinton or her colleagues intended to violate laws governing the handling of classified information there is evidence that they were extremely careless in their handling of very sensitive highly classified information. for example seven e-mail chains concern matters that were classified as a top-secret special access program at the time they were sent and received those chains involve secretary clinton sending e-mails about those matters and receiving e-mails about those same matters there is evidence to support a conclusion that any reasonable person in secretary clinton's position or in the position of those with whom she was corresponding about those matters should have known that an unclassified system was no place for that conversation. in addition to this highly sensitive information, we also found information that was classified as secret by the u.s.
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intelligence committee at the time it was discussed on email. that is excluding any later up classified e-mails. none of these emails should have been on any kind of unclassified system, but it's especially concerning because all of these e-mails were housed on unclassified personal servers, not even supported by full-time security staff like those found in the government will or even with a commercial service like gmail. i think it's important to say something about the marking of classified information. only a small number of the e-mails here contain classified information indicated the presence of classified information. even if the information is not marked classified in an e-mail, participants who know or should know that the subject matter is classified are still obligated to protect it.
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while i'm not the focus of our investigation, we also developed evidence that the security culture of the state department, in general and in respect to the unclassified systems in particular was generally lacking in the kind of care for classified information that is found elsewhere in the u.s. government. with respect to potential computer intrusion by potential intruders, we did not find evidence that her personal e-mail domain was hacked successfully. given the nature of the system and of the actors potentially involved, we assess assess will be on likely to see such direct evidence. we do assess that hostile actors gained access to the private commercial e-mail accounts of people with whom secretary clinton was in regular contact with from her account. we also assessed that her use of a personal e-mail domain was both known by a large number of people and readily apparent. she also used her personal
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e-mail extensively while outside the united states including sending and receiving work-related e-mails in the territory of sophisticated adversaries. given that combination of factors, we feel it is possible that hostile actors gained access to her personal e-mail account. that's what we found. finally with respect to recommendation for the department of justice, in our system the prosecutors make the decisions about whether charges are appropriate based on evidence that the fbi helps collect. although we don't normally make public a recommendation to the prosecutors, we regally greedily make recommendations and engage in productive conversation with prosecutors about what action might be appropriate given the evidence. in this case, given the importance of the matter i think unusual transparency is in order. although there is evidence of potential violation of the statutes regarding the handling of classified information, our
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judgment is that no reasonable prosecutor would bring such a case. prosecutors way a number of factors before deciding to bring charges. there are obvious considerations like the strength and responsible decisions also considering the context of a person's actions and how similar situations have been handled in the past. in looking back at our investigation, into the mishandling or removal of classified information we cannot find a case that would support bringing criminal charges on these facts. all her cases prosecuted include some combination of clearly intentional and willful mishandling of of information or indications of disloyalty to the united states or efforts to obstruct justice.
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we do not see those things here. to be clear this is not to suggest that in similar circumstances a person who engaged in this activity would face no consequences. to the contrary. those individuals are often subject to security or administrative sanctions but that's not what were deciding now as a result, although the department justice makes final decisions on matters like this, we are suggesting that no charges are appropriate in this case. i know there will be intense public debate in light of this decision but i can assure the american people, this investigation was done honestly, confidently and independently with no outside influence of any kind that was brought to bear. i know there were many opinions expressed by people who are not part of the investigation coming including people and government. opinions are irrelevant and they were all uninformed bite
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investigation because we did our investigation the right way. only facts mattered. the fbi found them here in an entirely political and professional way. i couldn't be more proud to be part of this organization. thank you very much. >> tonight on c-span two, a discussion about the criminal justice system. judicial branch reporters reporters discuss the supreme court's recently concluded term. then an oral argument in a chase challenging a north carolina election law. >> conservatives discuss their view on the criminal justice system in capitol hill today. we will hear from americans from tax reform and representatives
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of the texas public policy foundation. the group, right on crime hosted this 90 minute discussion. >> good afternoon. thank you all so much for joining us. especially for the long holiday weekend. my name is joe and i'm a policy analyst for right on crime in the public policy foundation. this is a 501 c3 non- profit research institute with a mission to defend liberty and free enterprise by educating and affecting policymakers in the texas policy debate with academically sound research and outreach. right on crime is the one stop before fighting crime, supporting victims and protecting taxpayers. we have dozens of conservative leaders, former leaders, members of law-enforcement, commentators
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and other policymakers who have signed on to our statement of principles. right on crime is a national project and has been active in over 40 states and federal level why is the think tank involving criminal justice reform. as those of you who work in the space are aware, the model for criminal justice reform is one that continues to be replicated throughout the nation, particularly in conservative states. the texas model is successful because it has not been focused on civil engineering or government flexing its muscles to prosecute and put away too many people as possible. it's focused on tweaking the system to fight crime, protect public safety and as a result we save taxpayer dollars. what i hope you will take away from the presentation is
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acknowledgment that this reform is a policy matter for them by conservatives. applying our principles to deal with the reality of how crime affects all americans and their communities. we have a slight change to our program today. mark levin is going to speak first. mark is our policy director for right on crime and a director for the center. mark has been with the organization before the before the reform began in 2007. he has been featured by just about anyone who has wanted to change the system and for good reason. his leadership in texas has brought this successful reform. he has testified before dozens of state legislatures. you may recognize him. he is going to share more of the policy details ask lenny how and why these reforms work. mark. >> thanks so much joe, we changed it up as i know most of
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you are here to see culver so we didn't want you to leave after his remarks but he was asked to start americans for tax reform so i wanted to begin with a quote from ronald reagan's state speech back in 1971 in california as governor. he said are rehabilitation policy is attracting national attention. fewer parolees are returning back than in any time in history. of course after that timeframe, after the early 70s until now we saw a five to six fold increase in incarceration in the united states. we started measuring our success by how many people were in prison and how big the correction system was which certainly isn't something those of us who believe in small government should be proud of. so, we have indeed seen that we have 5% of the world's population but 25% population but 25% of the worlds prison inmates.
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one in three adults in the united states have a criminal record. one and 34 americans are under correctional control and there's more than 4500 federal criminal laws per they couldn't count all of them in the congressional research office. there's. there's a huge cost to that, certainly financial costs have tripled since 1980. one of our signatories, newt gingrich said if our bridges fell down it would be a national scandal but that is the recidivism rate. so we know for some time that there are people who need to be in prison and who are dangerous for society but some get worse as they become disconnected from families and employment paired one of the problems we see is that one in five inmates are released without accountability for it i found it to be useful to compare the criminal justice system to a couple other systems
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that we have. i don't mean healthcare insurance but actual doctors and hospitals and of course the education system, both of which have certainly their problems. if you look for a minute at the practice of medicine, you see that the course of treatment is decided based on a diagnosis and the efficacy of various outcomes with similar patients of a similar profile that have the same condition. in the criminal justice system that is to position disposition of the cases created by politicians regardless of prior outcomes with similar offenders. the dosage and the type of treatment is adjusted based on the monitoring of progress where his criminal justice laws preclude any changes as years go by. in the healthcare system the often see precautions to prevent relapse. then for a second look look at the education system that has its challenges but you see most states have accountability
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systems where schools are rated. principles are given more power to innovate. in a prison system there is no data on the recidivism rate. wardens have little ability to innovate and you also see in progress of each student that is assessed where those in the correction. [inaudible] of course in the school system you have kids who drop out to go to private school or home school so there's some incentive even for public schools to improve. criminal justice system, the prison system grows to be extended that it fails. the higher the recidivism rate the more prisons that are needed and so forth. in the education system, parents and students can give input and
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you have evaluations but the prison system is out of sight, out of mind. the customers where the inmates really have very little input. those are some the challenges we see across the country. fortunately there is good news that we are seeing across many states. we've gone from one and 100 adults in prison in the united states in 2008 until one in 104. thirty states have gone through the comprehensive justice project where data is gathered and a task force or commission develops consensus to problems. most notably, the juvenile incarceration of the last 15 years is down 40% across the country. one of the most significant faxes that crime is actually declined more from 2008 - 2013
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to reduce incarceration. in that five year period, there were 33 states where imprisonment declined in those states saw 13% reduction in crime. where'd increase, there was 11% reduction in crime rate. so what that's emblematic of is incarceration is something which has diminishing returns as you sweep in more and more nonviolent offenders, you get less public safety benefit and to some degree it's counterproductive. some states have their six-month - 1 year prison terms because you're not hardly in incapacitating that person but you're taking that job away and making society less. these typically your low-level nonviolent drug offenses. let me highlight some of the steps that different states have taken. these are common threads across different states. one of the big changes in the 1960s there was was a real
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belief in self-esteem approaches and that has really changed to what i would say more accountability based approaches and behavioral therapy. you also had technologically based programs that certainly, and finally actuarial assessments. we've learned a lot over the past few decades. i think that's been critical. one of the things we are able to do now is make sure we have the right level of supervision by using these risk assessments, some people can be on a probation case with 200 people and some may be on a case of 75 people people. you're able to better allocate your resources, of course problem-solving, we've seen a lot of states that have increased courts.
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what they're getting smarter about now is making sure people who would've been incarcerated based on those who could've succeeded on basic probation. i think the key with those as you have the judicial accountability and the judge who can help with treatment resources around the offender. many have adopted graduated. nationally about half the people coming are people who have failed probation or parole. within those, half of those are technical violators, people who did not create a new crime but tested positive for drugs or left the county without permission and so forth. in texas, you can can even have a glass of wine. you can have alcohol if you're on probation for shoplifting or anything else that's totally unrelated to we need to streamline the conditions to the offenders. states were adopting these commensurate shake sanctions of a graduated approach.
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if someone misses an employment, they get a curfew etc. you don't wait for all of these technical violations to pileup and then revoke someone. it's like a kid touching a hot stove and you wait for them to do it again and you come down with a heart approach. a lot of things are also positive incentives for people on probation which can include earned time, reduced reporting, rip and so forth. those are more effective at incentivizing positive behavior and sanctions. so you have a few states like ohio who have actually adopted a state white grid that has proven very successful in increasing the rate that people have been successful. and time is a major area. states such as georgia texas and ohio who recently, there's actually been a number of
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studies that have found these programs do increase the rate at which they complete programs. incentive funding involves saying to counties, if used send fewer non- violent offenders will give you a share of the savings. typically these plans in arizona and the juvenile system in ohio and illinois are also tied to reducing recidivism of people on probation and increasing those employed. in arizona, this led to 31% fewer 1% fewer new crimes by people on probation and a 28% drop in revocation. many states are addressing the fact that one in five inmates are released without supervision which is troubling for people with mental illness who are on medication, there's no follow-up and pugh did a study in 2013 that found 36% rate of new crimes were released without
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supervision versus those on parole. part of the way you pay for that is by not spending as much on prisons. now let me turn to profiling several states that have adopted these types of reforms over the last several years. we say in texas if it's not wagging it's not true so i'm inclined to start with texas. back in 2007 we were faced with a projected increase to build over 17000 new prison beds. instead we adopted it reinvestment approach that involves $41 million in prison treatment programs and substance abuse beds and treatment programs and so forth. our crime rate is down 25% over that time period.
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texas is, of course, i think what's more important as you look at our rate of people committing crime on probation and parole has declined and that zeros in on looking at the current decline. the caseloads are lower in this treatment bed that officers can refer people to and we've have a lot of work to do but it's been impressive. risk assessment and provision levels. [inaudible] they've closed several prisons since 2010 in south carolina so good results there. north carolina has also had a very successful reinvestment
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package and graduated sanctions and they've had criminal reductions in crime. georgia is a state that has gone more recently in they've expanded their drug courts from 28 - 42 while creating a safety valve for. [inaudible] since 2011 in georgia there incarceration rate is down. more recently utah adopted a very successful package back in 2005. they formalized graduated
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sanctions for probation and parole, earned time for completing program and establish standards for drug treatment programs that reinvested 14 million savings into treatment programs and they allow drug offenders to keep their drivers license if they go through these programs. most recently in 2016, also they adopted a reinvestment package for they were facing 169 million in new prison costs over the next ten years if they didn't do anything. they have some unique challenges with people living in remote locations so that's one of the reasons they expanded electronic monitoring as part of the plan as well as things for the minor misdemeanors. they address pretrial issues which were filling up their jail by saying people who couldn't afford bail, seeming they scored well on risk assessment assessment would be put on provisions and a reinvested tens of millions in reinvestment and treatment. let me ask one area we haven't talked about which is not one that impacts the prison
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population that is one where states have shown the way and that is criminal intent. in the last couple of years both michigan and ohio have unanimously, through their legislatures and governors pass what we call a default meant way of provision which says if the criminal offense does not state a call on. [inaudible] then recklessness applies. if any bill is. [inaudible] then it cannot go forward. i think it's been remarkable how bipartisan and unanimous those votes were. finally, i'll say in texas in 2015, we adopted the rule that says if there are two or more reasonable interpretations of us that statute than the benefit of the doubt goes to the defendant. this is another protection which others have had in their law for
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many years. you have all these obscure offenses. in texas we found 1500 offenses outside the penal code. i really appreciate the chance to share these development with you and i think what it shows is that states across the country are taking the lead and they are doing it in a way that really is sustainable because it addresses both public safety and the fact that our prisons have grown out of control. thinks very much. [applause] >> thank you very much mark. if you want to grab a chair and let others get in, will let everybody get set before we get started. as the panel kicks off, i will
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make sure people can get the materials. there are five chairs here. come forward please. just don't make weird faces. it is live. >> you can tell the members that they pulled up a chair for you today.
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>> thank you everybody. we have two brave souls. there we go. i won't spend too much more time here. i'm going to pass around some of the programs and things but i'm get up past the softer craig who is the vice president for advocacy. they are one of the organizations that make up right on crime and he has been doing a lot of good work on this. he was the michigan speaker of the house for several years and he brings his perspective and we will introduce the other panelists so we can talk about this and we will also leave room for questions at the end. >> thank you joe peered i was speaker of the house, i was 6-foot four and had a full head of hair. this is what i look like now. it's good to be with you all and
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on a couple friends, as i introduced myself and will talk to you about the organization and why were here, thank you to joe and mark and derek and the entire organization for the good work they do. bringing forward information so people can make informed decisions on a system that affects a lot of lives and it affects the lives in a significant way as our healthcare system or education system. it's life liberty and the pursuit of happiness, after after all. the victims of the crime is going to play a role in restoring them. the efficacy of our effort there and it affects every member of congress when they go home and they're talking to people, even if it takes a year or two off from being in the forefront of
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the national debate in with the federal government is doing, as it did around the 2012 election, it certainly comes back and is in the newspaper every day and on the 6:00 o'clock and 11:00 o'clock news when they go home. we all yearn for and look for solutions that work. my background is at the state level and at the local level and i was invited to work at prison fellowship which is one of the oldest and largest criminal justice reform advocacy organizations that was founded by a convicted felon who started when he left prison. he was richard nixon's political advisor, specialist and he was convicted in a watergate -related case and i had a chance to meet with him in 2011 and he and others suggested that i meet chuck and chuck thought that my experience in serving in office
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as a conservative speaker of the house, but also someone who lived with addiction for 29 years before and the prison system hires people and uses the voices of people who not only have an opinion on this matter but also have the criminal conviction. were not talking about those people, we talk about ourselves. for us it's our values and our principles debate and so it's a privilege and honor to be here and to serve with so many with right on crime and i get the privilege of being able to serve i will be moderating questions
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and my first is to just go through introductions and the standard question for why their organization's here, not just not just them individually but why do these organizations care about this debate that's going on federally on criminal justice reform. derek, right on crime. i know we assume people in the room know what you are here for, you the host of the event, but tell us what right on crime's interest is. >> certainly. thank you. i can't really add much to the reason beyond what mark so eloquently said the reason however that we have made the segue into covering federal policy as well is, think of it a bit as a trickle up policy reform. the success that we have experience, not, not only in texas but in other states in the
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union, it just simply doesn't, or it wasn't taking it to the federal level. that's when we decided to make a concerted effort to really get involved in the research and some of the topic items that you are seeing now before congress resume. i think with the work of joe and all the other coalition partners, some of whom are here and some are not, i think you see that across-the-board, it's not just on our side of the aisle but on the other side of the aisle as well, you're starting to see this become more of an important issue. now he might boil down to different reasons why the individual groups are at the table but the fact that they're all at the table underlines that something could be accomplished. >> thank you. dan. dan schneider with the american conservative union. tell us a little bit about yourself and your background in the american conservative
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union's involvement in this debate. >> so dan schneider is the executive director for the union , we have been long supporters of criminal justice reform but i think rather than going through that history now, i i want to ask a question and then make an assertion or two. not everybody in this room is a conservative, i trust. i assume we've got some liberals and some moderates and some conservatives. i hope we can all agree on the proposition that incarcerating people is a bad thing. incarcerating people deprives them of their liberty. it should be used only as a last resort. at the americans conservative union, we stand for the principles that the central role
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of the federal government is to protect life, liberty and property. if we are going to deprive people of their liberty, it better it better be for a very, very good reason. my colleague had food poisoning over the weekend and he was planning to be here but i'm here in his place. he said we should put people in prison who need to be there not because were afraid of them or mad at them. i was taught and taught a few things about the criminal code. what is a crime. that was the first thing i had answering class. i suspect most people in this room may not know what a crime is. a crime is what a statute says is a crime. that's not true today.
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there are lots and lots of things that are crimes that have nothing to do a statute. the second thing i was taught in law school, i went to a fancy pants law school, but as we were supposed to know everything, the second thing i was taught was to commit a crime you had to have the intention of doing the act that was in violation of the law. that's no longer true either. there are things that are crimes that a legislative body never voted on and there are things that have nothing to do with one's intent or one's belief or one's knowledge. we have entered an era where we are locking up all sorts of people because were mad at them and for all sorts of reasons i have nothing to do with our safety and it's driving up costs and more important than the cost is depriving people of their liberty. i hope again that we can all agree that as a last resort response. >> thank you. let's go to the americans for taxpayer reform.
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you are one of the more visible national figures in the criminal justice debate and you've been committed to this for some time. tell us about how you got here and what your organization focus was on. >> we are americans for tax reform. i was interested in the subject a long time before i got into americans for tax reform, i went to trial. i know it's a very important issue end zone for many of the reasons that dan talked about. were awfully rough on somebody if we put them in prison and you better know what you're doing. you don't want people living in fear who ought not to be. from the americans from tax reform and as an activist, they spend a lot of time focusing on
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all the things government shouldn't do and were very good at pointing out that no government should do that of the federal government shouldn't do it which is code for nobody should do it but were going to get rid of it here first. we didn't spend a lot of time and haven't spent as much time on those things that the government ought to do like a military strong enough to keep the canadians on their side of the border and putting bad guys in prison and being tough on crime, i always assume that while the generals and the wardens and the prosecutors would take care of that, the clear fact is that there's an awful lot of work to do for conservatives if we are going to be governed instead of whining. we need to actually look at those things that a government ought to do and say how should this be done in the least destructive way and the least expensive way and least expensive in terms of people's lives.
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then when you realize that the left was incapable of participating in reforming criminal justice because they weren't interested in the subject then nobody's going to listen to them if they didn't have the right answer in vermont, nobody was going to listen to them. there's a wonderful chart that you have, texas was the first state to work on criminal justice reform. then it grows out from the red states, from the republican and conservative states. this whole criminal justice reform all of these things that are very good solid conservative positions have been adopted in republican states. now in some blue states as well as it's moved forward. i think we need to spend as much time looking at the pentagon and
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the criminal justice system to reform them, not to abolish them but to reform them as we do the programs that we would really like to see get smaller and go away because the government ought not to do xy or z. the left can't participate in this debate until we open up the zone. when texas did this, i've testified in various states and you're testifying in they did this in texas and all of a sudden people look up. oh. so it's not one of these week on crime, let all the murders out that you're talking about. actually they did it five years ago. two election cycles and nobody lost an election over the subject. not only comes from a good place that were can be serious about fighting crime and you saw the numbers on crime going down while these reforms, perhaps because these reforms are going through. at the same time they want to
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know it's safe that some but he won't yell at them that their week on crime. if these ideas had been thought up in vermont, they would have gone nowhere because he could not have gone to the people of missouri and said we've got a great idea in vermont, you try. texas and the other states have moved to first have allowed it to move forward. i think this whole idea of federalism, where were getting more more states to do this ten hour looking at the federal government, were not asking anybody to vote for something that isn't politically safe. we haven't been losing state legislative seats and governors races. it's all just the opposite. it's been a wonderful opportunity. and, it's worked. we've gotten better at it. this is a model for conservatives to engage. i don't think federal law should be passed and less ten laws have
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done it first. we would've never had obamacare. do it in some states and show us that it works. i think that's a model not for just this issue but for others. were going to talk about specific issues that are being debated in congress and the various bills but for everyone's information, there will not be any endorsements of bills from the palace here today or picking one over the other. one of the important things that i want to clear up, because i think it's important for the context of this discussion is that the impression that each of you have in your organizations and working on this because in washington d.c., often people say on the 6:00 o'clock news, on the sunday talk shows, where's the compromise. where the people in the middle that can split the baby and come up with legislation, but i think you're going to hear loud and clear from us but is this about compromise or is it about
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working toward shared values of the principled people on both the left and the right? >> people in the middle did this to us. this is the status quo that got here because all the reasonable people thought this was the way to respond to everything. left right coalitions and criminal justice reform is one of the handful that have been successful. they work because, and first on this case because conservative has led where the left doesn't have credibility among voters. if they had led the same fight, to student work. i wouldn't join their parade. i'm not sure i trust everybody. on a right left coalition, there is no compromise on principle. were working to do the same thing but perhaps for different reasons. when you sit down with the guys, they're very serious.
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they think this is an important thing. there are the guys on the left who want everybody to go to prison for environmental rules made up by bureaucrats. there are people, men men and women on the left of principle who actually think rule of law matters and are worried there are the targets of the regulars. this is not right and left get together to do something that is stupid and destructive, but it's halfway where they want to be. when the cops, and stop your car and say we think we have drugs and money in your car and they
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sell your car now they take your debit card and take the money out your bank account too. or passing laws to not let the police take money from your car unless there's a conviction. they shouldn't steal it unless you've been convicted of something. there's more money taken away from americans in civil asset forfeiture than in robbers. it's a very sad big number. all of these reforms are ones that people of principle, right in love can agree on. we don't agree on everything but the ones we can agree, it's not a matter of sacrificing principles. there's other good stuff in
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there but that's not the deal here. this is not a compromise with stupid ideas. this is working with people who, on principle, we can agree with. >> before i go to dan, i want to reinforce, i can imagine a bill passing in any state that showed an increase in crime. there's been no evidence they have done a much better job of tracking things but it's actually improve public safety and i think that gets lost in the debate. is this a compromise of the conservative union values or is this a chance to express your value and find them attractive to a broader audience?
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>> can the left in the right compromise? i just want to reiterate that so much of what's going on within the criminal justice sphere is not legislative. it is no compromise. they have champion the idea that the bureaucracy should capture the, it should lead the people but that runs counter to the founding of our entire nation. as we know well, we believe that sovereignty resides in the person and we understand that because our whole constitution begins not with we the continental congress are we the states or we the founding fathers, but we the people. there is this conflict now where it's typically the left that's pushing to be accuracy to move ahead of the people so than the
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bureaucracy creates all of these criminal laws that include incarceration of individuals as well as to find the outside of that political process and by political process, i do not not mean partisan process but how people govern themselves, political philosophy and as we've seen, the legislative branch diminish in stature, one of the consequences that has been the growth of the criminal justice state. we need, congress needs to take its rightful place in this process and we need to return to a place where members of congress on the left and the right can work together to address issues in a bipartisan way, take control of this process and take it back from the bureaucracy. then, as as members of congress move forward, understand that everything they do needs to be based on the idea that the
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liberty is paramount and should only be abridged when someone has committed something really bad. right on crime is involved in coalitions and has been heavily involved with the states that have experienced not only this success legislatively, what dan describes and what i hope congress will do, but you've been around to see the results of the work into see it play out. in those cases, do you feel that right on crime was a principal player or do you feel you were drawn into compromising on principle? >> 's most certainly the former.
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we happen to overlap on these particular issues. a great example coming from texas in 2015, prior to, we were one of two states that use the criminal justice system as a system of first resort for kids skipping school. i always make the joke that this would've made me the equivalent of bonnie and clyde when i was a youngster. we were able to overlap on this particular issue with the same exec policy prescription. they are still advocating for payday lender reform and
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pipeline reform and things like we are not necessarily advocating for. on the criminal justice, interlude and to discipline, we were 100% in agreement. this is one example of where we find that issue as opposed to changing what it stands for. you see that across the spectrum another great example of that in michigan, you saw saw the mackinac center in the michigan chapter of the aclu both shoulder to shoulder championing the reform. this might show that the federal process tends to be a little detached from it but both of them had natural constituencies that were very affected by this law or by the lack of law. you generally find these uncommon allies overlapping on these particular issues and then they move forward on that
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without changing the core of their beliefs. >> the next question it seems in the elephant in the room it seems, for member of congress, for 40 years, whether you are running as a republican or a democrat, to lock people up for longer periods of time is the politically safe move. to do the opposite is a politically risky move. we are seeing overwhelming evidence that these don't affect reform. is a no vote on reform something that addresses physical oversight and liberty issues or
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the performance of the system, what are they looking at when they're presented with bills that have the research and support in front of them? >> i think you hit the good and the bad. it's a policy issue that requires an elevator speech. it doesn't sound bite very well. however, here we have this litany of success both in this is state and across a variety of programs, i honestly think it is diminishing if not wholly gone. what you've seen in recent campaign cycles is that where the tough on crime has been invoked, it tends to be more of a death rattle as opposed to a tip of the spear and when it has
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air it just haven't found any putting. you also see all the polling that goes on in tandem. in texas we have been pulling on this issue since 2013. we wanted to look at, what what about the heart and mind, are the heart and mind with us on this program? not only does the effect of people wanting to see commonsense reform and conservative reform, not only did we see that very strongly supported, we've actually seem some very incredible effects on there. for example, an article that we put in the journal of public policy, we actually saw that conservative identification actually predicted a decent amount of affinity toward rehabilitation. you see that rehabilitation that tends to drive a lot of public traffic.
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that's not to say there isn't a punitive element to that but that is overshadowed by the rehabilitation and it usually plays second fiddle. then a lot of people say we need to have a strong deterrent system when actually pulled on deterrent itself, deterrence get get at most 7% of people saying this should be the purpose of our criminal justice system. it's not that they don't want to punish or they don't want to be attributed, it's just that is simply not what drives it. we found that people almost two to one want to spend money on effective legislation. i think when we look at what's going on of the states, it's really giving a better position
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of where the american political policy is on this when looking at the things that they think are overstepping the role of government, this is, there hasn't been a lot of scrutiny. my wife is sometimes better at summing up policy issues than i am and she would simply say hospital should make people healthier, classroom should make people smarter and the criminal justice system is supposed to reduce crime and hold people accountable. what's your take on the performance of the system from a
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tax payers perspective. >> it hasn't done a good job and it's gotten expensive because people don't focus on it but were spending $50000 a year in california to put in a doll in prison for year and 25000 in florida. these are pretty significant numbers. if you can punish somebody and rehabilitate them in ten years instead of 15, that's a lot of money that has been saved. if you can keep someone out of going from prison and keeping them away from crime, that saves a whole bunch of money. the other thing you do is you take somebody out, you take a pair of the household and that somebody who could be running support for the family on the household and up on welfare and it doesn't do any good. it's tough on kids, there's a lot of damage that's done and we
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need to figure out how to punish crime, deter crime, work on rehabilitating people who have been bad and could do better. we don't do that well because were not focused on it. you passed a law against people raping each other in prison per for how long was that a punchline in jokes. it's kind of sad. i think if we focus on getting it done with the least amount of destruction to people's lives and pocketbooks, we can do a lot better than we have done. just one thing to add, sometimes people say there was a spike in putting people in prison but maybe that's responsible for actually the drop in crime. while crime has continued to fall as we've moved away from putting the number of people in prison. but the drop in physical
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violence, physical crime rate, murder, assault, the drop in those crimes has matched with passage of concealed carry legislation of the state. they've passed it state-by-state so you can compare states who did it ten years ago and those who did it 15 years ago and those who did a five years ago. that's where you're seeing, people still steal your car but they're much less likely to mug you. that's one of the reasons you see the drop. when you see the drop because of crime, the trying to get away from the fact that you can track can seal and carry passage and permits with the drop in physical violence. i'm not surprised we've seen that kind of crime decrease. >> thank you grover, a reserve
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my right to interject but i'll say one thing on statistics and to pick up on what grover said, one of the casualties of the passage of locking more people up from the early 70s up through a few years ago was the actual arrest and conviction rate of murder in violent crime rates. they cited in an arkansas paper that the current system leaves 47% of the murders go without having an arrest. no time no time served, no sentence, no probation, no reentry. where i'm from in detroit, they run about a 50% arrest rate. rate. in chicago in 2012 they have a 30% arrest rate for murder in chicago. in the 60s before we started focusing on locking up more
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people for lesser crimes, the arrest rate for murder was significantly higher, sometimes into the 90th percentile
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is a civil rights at the congress can talk about a
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standard for civil asset forfeiture with the constitution or would that be overstepping for congress to be involved in the civil rights forfeiture? >> i suppose most people don't know the history of civil forfeiture but if you've ever watched miami vice in the early 80s you would know both speedboats would run drugs up from mexico, at least that's how was was our spa. on tv so hey let's stop the drug flow by taking property from the bad guys. it's a great idea but instead of asking who is indicted when some of these assets are taken because no one was actually indicted what is guilty of the crime? the asset is. supporting thousand dollars in cash that young man had that is apparently guilty of a crime so is a constitutional? i didn't know boats had
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constitutional rights but the owners of those properties have constitutional rights and their rights to property are being violated. let me also kind of go back and address some of the broader sentencing reform. judge pryor has been a real leader in sentencing reform preview is included among the 11 candidates that donald trump might select a point to the supreme supreme court if donald trump were ever elected. again when he was in the state before he is a federal judge he's the one led on sentencing reform. post-release alexis de tocqueville explained long ago that what makes america truly unique is a voluntary society how we take care of each other voluntarily and frankly here is, this is an area where conservatives and americans have
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really dropped the ball. i would encourage everybody in this room to engage in their communities more. that's what our nation requires that we are going to be a healthy prosperous nation. in terms of confinement there is one bad idea floating around which is for the federal government to take over the bail bond program. our constitution contemplates that they'll has to be said in an appropriate. and not too high but the idea that government would take over this function, this private-sector function, that's a bad idea but while somebody is incarcerated i will go back to my law school experience one more time. in my criminal law class i was asked what is the purpose of risen and i was thinking it's a lockup bad people. no, is it retribution? is it to get even or is it rehabilitation? what is it and i think as a
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nation we need to look at this uncontroverted ball. we need to do a much better job at actually helping people become productive members of society. >> there are, what do members need to see, which issues with the clock running on this congress and this president wide elements do you think would be most impactful? >> i would say all of the above. specifically i really think we are at a watershed moment on the issues that you mentioned is for sentencing. i do echo your sentiment as well that we do need to do a better job. when we abolish federal parole everyone is like lookup tough on crime we are.
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our ability to monitor people who might post a safety risk in the community so not only tough on crime where also incredibly reckless and i think several examples have underscored that point. i think the simple act of forfeiture debate to their point both that is something that the federal government does provide that causes all sorts of trouble and takes away from the actual police powers of the state and that's something that needs to be addressed. however if you look to the federal government, what you need to do to combat that is you need to state individual reforms in state connection put and cuffs unintended on their law enforcement agencies in dealing with equitable sharing agreements. they could run these particular agreements through the attorney general, just one possible example of many that really gets away from offering back even if
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the legislature says we want to take our citizens property rights this way allowing other individuals to go around it. >> we are going to bring this part of our discussion to a close here momentarily but to set the stage for your questions i think the panel is we all know from our experience in working on these issues and with members of congress but also in the states that there'll me too ways to affect the number of people that are currently in the federal prison system and that is the number you sent into the prison and the number that you let out of prison. we didn't get a chance to talk much about the post-release but i did want to be clear in my comments that is currently not prominent in any of the congressional bills that are being discussed now so you can ask questions related to that. as grover encouraged members of
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congress i know we have a number of staff members in attendance here today to dust off a criminal task force bill but i would also encouraged the members of the staff to look at what can be done post-release as prison fellowship of the corporate believe the criminal justice restoration of those affected by crime incarceration and we can truly do that if when somebody pays back their debt or they are never allowed to pay back their debt in america today. so with that, joe. >> please state your name too. c my name is jenne can lean in the directory campaign for the
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fair sentencing and thank you for being here and your leadership on these important issues. i am wondering what either of your organizations would advise or both are presumptive nominees for president on what their priorities should be on criminal justice reform in the coming years. c i didn't set the stage well enough so i'm going to set it now. we have 20 more minutes together and we want to get to as many people in the audience as possible so where possible directed to one of the panelists and if it is to all of us on going to ask or we can say pass. thank you for the question. ..
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>> with american values of each life having a value and before we take away someone's life, liberty, and pursuit of happiness that we should slow yourself down enough to take that individual case seriously. i'm not trying to offer, again were not endorsing specific things here on this panel, sweeping legislation but that is the corner that we should fight out of and we should go as far as we can, this is something the government should be in the business of doing but it should reduce the value of the people
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going before this process for efficiency area does anybody else want to chime in on this one? at the federal level, 90% of the instances of prosecutorial misconduct, of main justice. let only 10% of the justices workout of the main justice. so the next president of the united states, i would hope that our attorney general would take control of that office a few blocks away, get control of that. at the state level i do not know what the update is but there may be similar instances where people are trying to look at their future at the expense of people's liberty. >> thank you i'm janice, i'm present-day america and i would like to as grover norquist this,
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what are we doing about our judges? where 10,000 people per year who go to jail illegally. i was illegally jailed and tortured in the city of alexandria. 22 days, i snuck out talk days, i snuck out documents to get out, 14 days in solitary can confinement so senator mark or it can be reelected. there's no work for me to go to help, all my complaints are ignored. our judges are running while. it's like the wild, wild, wild west for them. nobody is policing them. i want to know what you think and be done. we seem to keep thinking there's a conflict of interest to hold them accountable but we have three judges who have retired early that we will all pay for, especially richard roberts here in d.c. who raped a 16-year-old. we are all going to pay for him to retire. >> to the issue of, the real challenge i've heard stories of judicial abuse and i'm not sure what the best either legislative approaches. we need to look at it all. we should not go the prosecutors
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always always right, we should not go the judges always right or the defendant is always right. too often different individuals or the whole system takes the take the position that prosecutors never make a mistake or judges never make mistakes. they do, and i don't know the answer to your question but we have to focus on it. >> one thing i would bring up is in taxes we had a case involving a gentleman named michael martin who you may have heard who is wrongfully incarcerated for 26 years. the judge in the prosecutor in the case obstructed dna testing for six years which ultimately exonerated him. but both of them have been sanctioned by our judicial conduct system and by her state bar so we need to strengthen the sort of remedies and make sure there is not ridiculously short stature limitations. sometimes you don't realize it, committed misconduct misconduct and wrongfully convicted them until many years around on down the
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road. also with solitary confinement some states are getting rid of that entirely for juveniles. we still have for example people in texas, new mexico, and other states were discharged directly from solitary confinement to the public. that is the practice we need to end and dramatically reduce the number of people in solitary confinement, period. it is proven to lead to higher recidivism once they are ultimately released to the public. >> i want you to know i'm very synthetic to the situation. was prosecuted for two and half years myself and one of three levels of government had it dismissed and is now case lots. there is no oversight for prosecutors who choose to go after somebody because they have a blank check without a boss. i do not want you to -- i understand. i just do not want to think people should be dismissive of it but that is for the staff of the room that is currently, it is a very serious issue, one that i have lived personally, you can read about it in the book, highly functional. it is not currently being
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contemplated, it is an issue though that it would be nice for the federal government to look into in the future. >> if i may. i think one of the bigger issues here and that this is really undermines the lot of what people both on this panel and what people in this room bleed. the reason we do have abuses in the criminal justice system, at whatever level, by whatever function or commas because we have a very poorly prescribed idea of what to the criminal justice system is supposed to accomplish. is it supposed to be this instrument of a retributive force for the state, something it is, something it isn't. should it be the guarantor of rehabilitative services? something so, something don't. so we really need to have a public conversation on what the true role of criminal justices. i think that i cannot go down more forcefully and that the pendulum has swung so far that we have gotten into this knee-jerk reaction where we are going to say tough on crime,
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it's like the pavlovian response when here about ring. as you have seen folks on this panel, that is starting to go away. this is the political reality of this is that we become one much more of deliberate consideration as opposed to one of need your policies. >> there's a question behind you. >> this is josé with friends of national commission. so we care about this issue and i appreciate grover and dan joining us to speak about the influence of these bills. my question is, try to be concise, we have heard from members specific members that have issues with retracted buddy were any kind of finish to mandatory minimums. what would you say to some of those individuals who think that we should not do reforms to those parts of our criminal justice system which is but so many people in prison? >> dandy want to start with that?
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>> the question is retroactivity in mandatory minimum so it was really two questions. >> for both of those questions i guess i get back to this idea that the presumption have to be that we preserve people's liberty. that is where we always have to start. so on retroactivity what is your goal here? is the goal to lock up as many people as we can? to reach back and grab as many people as we can? or the idea to preserve the rule of law and lockup on the people that we really deem is committing heinous things. on mandatory minimums, is the idea to have a cookie-cutter approach where there's no discretion, where there you
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check off this box, this box, box, this box and that is what the result is. that i think flies in the base of the idea that the first presumption is that we have to protect people's individual rights and sovereignty. >> one of the problems of mandatory minimums as you don't consider the presence risk level. you don't consider what the victim wants which is in many cases restitution we are talking about property crimes. their surveys property crimes. their surveys of victims. instead politicians are setting without knowing the acts of the case are substituting their judgment for that of the judge, or in texas we have injuries to a lot of those things. so with regard to retroactivity, and happenstance whether you committed the crime yesterday or five years ago. obviously another states that are updating the drug laws to reduce penalties for up possession and having it be and retroactive in the sky has a phone. it's easier for people to get a job now then with a misdemeanor rather a felony on the record.
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i also believe, ii heard prosecutor save you retroactively reduce penalties for violent crime that it's tough for me to go to a victim and say gosh the sentence is not what we told you it was at the time. that i understand. i understand. we can have a discussion about that. when we're talking about making retroactive reductions in drug penalties example i really do not see how anyone could possibly object to that. >> look, take a a look and see if you think it is wise to reform mandatory minimum minimum and just to victims as well as general society. if it is, then retroactive is not that big of a problem. if you're going to decide that you are changing the law, changing it back make some sense. if it doesn't make sense to fix the mandatory minimum, i think a lot of them are too long and there's too much rigidity. don't do it. but if it does make sense, it makes sense for the guy two years ago as well as two
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years from now. >> one more question behind you. >> steve landy i'm sitting here because on 74 years old i think, i think, not because i'm part of the committee. a short question i think because for norvell. one of of the pieces the legislation keep talking about is the constitutional amendment on parents rights, perhaps nothing is more deprive someone of a right is to lose a child because your economic position and so on which in many ways has a lifetime if not two or three generational punishment. what what is your view of that kind of legislation and doesn't have any chance of getting quotes, bipartisan support? >> i just need to ask clarifying questions or. you're talking about the parent being taken away or the child? >> the middle-class person comes and makes some value judgment and takes the child away from the parents despite the parents intention to raise the child as best they can. they're taking the child away.
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>> i serve on the board of directors with hunter rights organizations which support the parental rights amendment. i think it is a great idea. i commend to your attention and your bosses attention the constitutional amendment, mental rights amendment that basically puts into the constitution that parents have the right to raise their own kids as the late justice glia said, there ought to be a right like that but there is an in the constitution and in not going to see it if it is not written down. so i think it is a good idea to put that into the federal constitution and parental rights amendment. it's a great idea. >> it does come out, i was at a hearing in texas testifying and a woman had gone to jail for a small amount of marijuana she lost her child. the child was put in some center in east texas and she connected the child back even after she was discharged. she told me she testified that they send my child is depressed and she said well he's depressed because he does not have his
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mother. so a lot lot of the average women in prison, they have to and have children and it is mentioned earlier a lot of breadwinners and fathers are incarcerated as well and their children miss out on their father. so this is a huge issue within the criminal justice system. >> thank you mark. joe question mike. >> thank you. my my name is james. you mentioned the coalition of doing the criminal justice reform work and my question is, there is broad bipartisan support in the senate for the senate reform and corrections act. and the judiciary -- that question is what if necessary at this point to get senator mcconnell to bring it to the floor and is there anything that people in this room can be doing to help with effort? >> again not speaking to the advocacy of any particular bill at this panel, reporting to this
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audience my understanding of what is going on is that there is a very large number of united states senators that do in fact support that legislation, just as various bills in the house. there is a very large number of members of the house of of representatives from both parties that support those bills. the gentleman who has the question is properly noting what the hurdle is. what does it take to get to the leadership in either chamber i would add, to actually move legislation so it would have time to pass before we seek a new congress. i will let others comment on that too. from our view at present fellowship it is the age-old issue that congress has a limited number of things that they can bring up to that level of all this is a significant
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priority to many americans it is competing with other priorities. such a piece specific about what would work, what i have seen work on any number of bills is when people bring in the values the part of the discussion and they are not trying to convince their numb member of congress on a new set of values but they are trying to remind members of congress that this is the value that they campaign on. they are their own values and it is an opportunity to express that. the second is that this is a very real human consequence. we are talking about increasing public safety and reducing crime and there is nothing more respectful to victims that we can do then to improve the criminal justice system so we have less crime in america. the federal government can contribute to that now if they, and the remainder of the session take steps forward with a
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variety of bills that are available to them and how they express that. so from there it is a traditional advocacy. as you have seen here this panel was convened to show that the base of folks in one particular side of the aisle very much think this should be on the top of the agenda and very much believes this is something leadership should take up. i went to little long there, my friends. >> just quickly think there is a lot of consensus out there what we can do. there are some of our friends on the hard left that do not like -- i think today may convince them that they do like. [inaudible] and the rest of the country not just hillary clinton should have it in the laws they face. the idea that regulations passed by some bureaucrat somewhere never passed by congress do not have mens rea --
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[inaudible] protection. it is very important that it be part of this. and those people who are standing and where standing in the way of reform. go talk to them. >> again, just to elaborate, what we have heard is public, speaker ryan has indicated that they would like to bring it and it particularly if that is part of the build it would put considerable weight behind it in the senate to overcome some of the voices on the other side. so to have those huge numbers it would boat vote very well. the house the witches, dance of with mens rea should pass strong bipartisan support. but in the senate a few people
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can be obstructive. >> i would just add that mark and i on this panel it is almost flippant to say but we can actually claim beltway outsider status because we are in the eye 35 belly down in austin. one thing that i think you are seen and that hopefully the polling data hasn't met out is that regardless of what the stumbling block is, be it not enough dates on the calendar, not enough hours on the day or put it: transit, whatever the case may be, this may be, this is a very, very, very safe issue. as representative of the voter base a matter how you slice it up. you see a pan ideological across the ages, cross i could patients come across genders too. you generally see this not modulated at all by party affiliation. it simply is a safe issue. >> dan, we close us out? >> i will quickly respond to
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that. the american conservative union's house to see pack, the no conference for conservatives. we had a panel on the main stage and cpac a criminal justice report. you might be interested in that. we had one democrat and three republicans on that panel. the democrat was the one most aggressively not wanting any reforms. a couple of the republicans were saying some modest reforms. the third republican republican on the panel was saying aggressive reforms. so i do not think is such a binary thing, mcconnell what is and he just bring it up. well, like most legislations it's complicated. different people have different priorities in different interests. maybe that is why keep on stressing somebody's philosophical foundational questions so that informed thinking going forward that we have to respect the sovereignty and the dignity of the individual, you have to presume innocence until proven guilty. these are some bedrock
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principles that i think we need to restore as well as the first branch of government. the first branch of government needs to be doing oversight of federal agencies and judges. federal judges have been impeached in the past for wrongdoing. congress needs to take back it's right for place and we need to return to our foundational principles. >> thank you. >> let's thank our panelists please. [applause]. >> i want to go back for just a moment to velasquez them. i think a big part of the reason we held that in the rayburn building is because the senate has got a lot of attention but it is the house bill that is looking like it is going to move. the folks in the sun is saying the hospital is going to move first. so house people, the question is when are we going to start moving things over here. i just want to thank chairman and his staff who helped us get this room. i think next time we will need a bigger room. i also want to thank american
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protects reform, there are very helpful today. we needed a few more hands on deck i'm a handful of people are in austin. so it was helpful to have them here as well. i think hopefully you got the message today that conservatives have been and will continue to be the real champions of successive criminal justice reform. i want to remember the successful part. successful reforms are the conservative reforms. it takes conservative principles for the system work. for those of you who want to learn more, we still have a handful of materials in the back. in particular i there is one on federal myths. i think it's particularly good because i wrote it. it. our website, right on crime.com. as well as a criminal intent.com. feel be free to reach out to me. i am here in washington. feel free to get in touch with
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any of our speakers. i was lazy can see it is an important issue to them and it is an important issue to conservatives everywhere. thank you so much for being here. have a great afternoon. [applause]. [inaudible] [inaudible] [inaudible] [inaudible] [inaudible]
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[inaudible] [inaudible] [inaudible] "washington journal" is live every day with issues that impact you. on wednesday texas republican reacts to today's recommendation by the fbi that no charges be brought against hillary clinton as well as the justice week vote on gun legislation in the south. then michigan democratic congresswoman brenda lawrence will talk about the latest on
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we will be privileged to her this afternoon from a panel of journalists who cover this up in court for many years. i will introduce them in order of seniority. in my far right of the national -- is cover the court since 1979. with usa today. they joined the washington council in 2000 and continued the correspondent as a merchant to the law journal in 2009. david savage who is next to tony has been with the los angeles times since 1981 and covering the court since 1986. he started 86. he started the same time justice scalia started. he also cover the court for the chicago tribune. he recently wrote the latest edition of the guide to the u.s. supreme court published by dq press which is the congressional quarterly. and on my immediate right took over the new york times to state
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years ago and had a long history with the times when she first joined as a copywriter in 1984. after she graduated after she graduated from college and then return to the times with a law degree in 1992. she joined the legal department and advising the paper with defamation, privacy, the right the right to news and similar issues. a decade later they began with the legal issues. on my left, arianne who is a reducer for cnn politics covering the court legal issues and cnn's reporting on supreme court cases. before joining cnn should cover the court as well as the nomination for several justices and there it was an investigative reporter she covered terrorism, the aftermath of 9/11, built clinton's impeachment, and campaign-finance issues.
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her bio on the cnn website tells me she grew up in westville indiana and google maps tell me that she that the population of -- [laughter] she is a graduate of george washington university. this is not a panel of litigators of case law although we talk about some cases. but we just mostly report on the cord as an institution and a collection of institution and covering the court as journalists. we plan to save some time at the end for questions from the audience. wait'll you see a microphone. there'll be one passed around. so you can think of questions as we go along and hopefully there will be time at the end. well let's get started. i certainly the biggest development this year and the most unexpected was the death of justice scalia midway through his 30th term on the court.
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there are obvious ways in which his departure affected the result of several cases but how did it affect the operation of the court and the atmosphere at the courthouse? let me pose that question first to tony who started covering the court before justice cooley arrived. >> thank you. it is good to be here. yes. yes i do remember the days before justice scalia and when oral argument at the supreme court was much tamer affair than it is now. when he had justices like brennan and marshall, blackmun and powell, a lot of them asked very few questions. you could go a whole hour with may be a handful of questions. whereas now it is not uncommon to have 60 questions, 80 questions in an hour hour or half-hour. it's. it's incredible how different it is.
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certainly scalia stirred the pot, soon as he got on their i don't think he waited for the rookie year of deferring to the other justices. he waited right in and i think just made oral arguments much more proactive or aggressive event. it was to the point where i would often come out of an oral argument and think boy, the supreme court is going to roll this way in this case. then i would get my notes and basically it was justice scalia who was going that way. but he has such an overwhelming influence over the entire court and over the entire event that it was just amazing. he would throw lifelines to
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lawyers that he was in favor of. he would demolish lawyers he was antagonistic toward. i remember words he asked a question and the lawyer paused a little too long and scalia said, counselor, you have four choices. yes, no, i don't, i don't know, or i'm not telling. which is it? i'm surprised the lawyer did not faint at that point. i think i would have. he was that kind of an active participant and he got everybody else active too. >> i sure agree with all that. i remember i started when scalia started. i do remember a little bit of the first couple weeks before scalia. it was a completely different place as tony said. it seemed to be a
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court of nine old men in the scalia came in and he was full of energy. there are of energy. there are so many times that i remembered the years when you could go up there on their arguing a case and there is an audience of tourist and i would say about ten minutes into it everybody is asleep. then scalia would say something like, so, you think you want us to sort of rewrite the rules for handling energy nationwide. on the attorney said no, no that's not an scalia was said it is sure sounds like that is what you're arguing. he was started in on an attorney. you could see everybody's eyes would sort of light up. he would have a different view of a case, a really clear, he would bore in on somebody and eventually the other justices would wake up and try to respond. he was a real force of nature. you could immediate see this spring how different things were when he was gone. the the abortion case followed a few weeks after that and the three
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women justices really went after the texas attorney and it was almost like, i said while i have never seen the side of the court before. the three women are really working this guy over. in the old days scalia would have been to fight back. so if you just watch the court it was a very different place without him as well. >> i was going to say in that abortion argument, had scalia been on the bench he may have been able to cut it back a little bit. that was a sustained attack from the liberal justices. had he been on the bench he would have stepped them i think. he would have maybe change things a little bit. i also had an interesting conversation with somebody who has argued before the court for years and they said going in that suddenly they had to prepare a whole different way. that was very interesting for me because as a journalist i'm not preparing for argument. he said without scully on the bench we have to look at all arguments it
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in an entirely different way and present the case differently. he had that ability if you are ever into watch oral arguments he would lean way back in his chair and then you knew it was coming. he would just bounce forward and he could derail even the most experienced lawyer could feel that. >> byron white used to say every time a new justice joins a court it's a new court. but it turns out even losing a justice completely transforms the court. i will just say that it isn't less want to cover this court than a court with scalia. you can agree with him or disagree with him, he said lots of quotable things from the bench. he definitely in his prime was one of the very finest writers who ever served on the court. he may have lost half a step in later years, you probably probably remember in the affirmative action case that he said some fairly wild things which i think i know what he was trying to say but he managed to say it so badly that it smelled of racism. so here is a man whose career is
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tremendously influential, really fun to cover, but may have been on the decline even before his sudden death. >> let me follow up on something you just said. i also also think that i know what he was trying to say in that comment from the bench in the fisher case. how much, if at all do you think it was your job as a journalist to explain why he he thought what he was trying to say and was the reaction to that? >> i do think it is my job. if someone says something up and that you know they did not mean just that way and you know from the body of their work and their briefs filed in the court and he was talking about that that it is my job to give context and analysis. i have no question about that. >> and let's give a little background for those in the audience who may not recall the comment, to have a volunteer?
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>> justice cooley asked if it was during the time in the boy he said, isn't it the case that sometimes that it is not the best thing for these african-americans to be recruited by a school like the university of texas where the standards are high and he said it may be that there are other schools that are slower paced. i forget the exact word he where the african-american students might do better. as adam said, he set it in a very, very clumsy way that made it sound like african-americans are per se going to be behind everybody else in the class.
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people gasped when they heard him say it's. >> i did have to write about at the next day because one of my editors in los angeles said what is that about? i thought, that's a good question. so i try to explain the mismatch theory but as tony just said, scalia said it like a general proposition. i'm not sure it is a really good idea for african-american students to come to, and what he apparently meant was, not most african-american students, that if you have an affirmative action plan that gave a real big boost to a small number of students, maybe those students would not do well. maybe they would be better off going to another school where they were more in the middle. but that is a tiny fraction of the african-american students at texas. he he said it in a way that suggested that he has a general problem with admitting the students.
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so if you are in our position you sort of have to say, here is what he said and here is what he sort of mental but he did not quite say it that way. so i wrote an unsatisfactory article that tried to say all of those things. >> but do you suppose that it may have helped move kennedy? kennedy wanted no part of this thinking and that helps kennedy even after scalia's death. abandon his thinking on affirmative action and come out the other way and right and fisher to? >> i actually saw that when you wrote it and i had not thought of it before and i thought it was so interesting to make that connection. >> do you hear me now? i thought that when adam wrote that i had not made that connection and i thought it was a fascinating connection connection to make when you think about the impact of oral arguments, how much that would have moved kennedy or made an impact. i remember that day really well because i knew a schoolteacher who brought students to the court, i looked
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over and i did not actually hear because i'm so busy trying to keep up but i saw ten faces looking very stunned. of course what he said did not match up with the brief on mismatched that he had filed. he had not, he spoke quickly and as he said it was clumsy. >> even the limitations of your medium, were you able to try to explain all of this the way the reporter did or did you just let it go? >> oh no, we did explain that. i think i wrote a separate piece on the whole theory and then two days later we got the audio.
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when that came out we wrote again because it is very powerful. you can hear about it and i can write about it but when the audio comes from the supreme court we cut that and we release that an i think people were interested in hearing it. >> i think that was a good example of why they do not want the audio to be released the same day. every tv a newscast would have had that on that evening had they released it the audio during the day. >> maybe now that scalia is gone they will be inclined to revisit the question. >> i think not. >> it is and i think. arguments are monday, tuesday, wednesday and for no good reason the audio gets released on friday. they're perfectly capable and to occasionally release the audio the same day. i have never gotten the beginnings of an answer to why they have to wait till friday. >> in fact we're going backwards. a few years ago there were some cases where we would get audio the same day and that does not seem to be happening. it also reminds me of jurat
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general marelli when he was starting the healthcare case. he choked on water and water went down the runway and it was not a good start and that came out in an ad. >> and cut in a distorted way just the audio. you have to think the justices that my god, what if they had video. and they make and they make this into a political exec add something meant to be hush a serious argument of the supreme court. >> that ed did not help the cause of trying to get audio released sooner. >> tony, you wrote an article after justice scalia died about how he made it into an edge attend tell us what happened. . .
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federal judges, i guess like members of congress, are not allowed to get $5000 for a speech or an article. they can get $20000 for a week of teaching law school in florence in the summer which a lot of them do that kind of thing, but they can't get money for speeches. justice scalia was jawboning members of congress to get that band lifted and he didn't much like the article so he wrote a letter to the editor which was extraordinary.
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justices don't write letters to the editors as a rule, so my first question, i called up the public information officer and said first of all, is this for real or is it a fake? if it's real, but does the justice want it printed. the answer was, yes it's real and yes he wants it printed. so he said, among many other things, he said the story was gossipy and moronic. and he spelled it with my name, m a uro. that became a joke for a while and i imagine he regretted having given me that moniker.
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>> in addition to asking interesting and bold questions from the bench, he was also known for his oral defense toward the end of the term. this term we only had to oral defense post. were those harder's or maybe the better question is less fun to cover than what justice scalia would have done? >> justice alito is a first rate lawyer, very good but not particularly quotable. this may segue into a topic i know you will ask about which is which of us still go on the big days up to the courtroom to see the decisions announced and to see the very rare oral dissent. i think it might be, none of us which is a fairly recent
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development. it actually is a very good way to cover the court, to go up and have the person who wrote the decision in conversational terms explain it to you while you're not trying to flip through the paperwork but are paying attention and then on a really big case to hear with what's wrong with that person just told you. twenty-five minutes later strolled onto the pressroom and file a story informed informed by that valuable knowledge. that 25 minutes is no longer available to us. i can't be 2500 -- 25 minutes behind my colleague. in that case it was just two terms ago, i stopped going up and doing this valuable historical thing so i can be in the pressroom and start writing right away. we do have colleagues of mine, very good colleagues who are in the courtroom on the big days will tell you, i miss it. it's a cost-benefit where i think the benefit outweighs the
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cost but the cost is real. >> interesting on that, when it's red and alito was reading the dissent in the affirmative action case, i'm in the pressroom, just off the pressroom in my own little cubby and i can hear him reading it and i thought, in the affirmative action case. >> they do pipe some audio. >> i thought i heard and i could be wrong but i thought i heard him say berserk this is affirmative action gone berserk. then he did not say it in the written opinion, so there's an example. they obviously don't read the entire dissent. i thought that was kind of like him to have affirmative action gone berserk. >> in the actual he said gone wild. >> right, i remember for
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healthcare, i interviewed the first healthcare case and she didn't have the paper. they don't have the opinion before them so she's listening and she's thinking, it's not going one way and then all of a sudden when he shifted gear i went to the taxing power, i remember her saying something, her head just swiveled. that's something that you don't get when you're downstairs rifling through the paper. you miss that. i totally understand why we are not up there but i'm often in the us of my get to go and sit. the opinion announcement is the closest the supreme court gets to spend control because the justices don't read their whole opinion. they use too, decades ago, but now it's just a summary.
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they are able to highlight the parts that they think are important and to sort of dodge or avoid the tough parts and so it is very valuable to see what the justices themselves think is an important part. sometimes they will use words that are not in the actual opinion. that's a big boss. that's also why, this is deep in the weeds, but that's also why the oral arguments aren't made available at the end of the week when they appear, just a few days later but the opinion announcements arm not made public until the following term. usually many months after the argument.
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the reason i think we've deduced is the justices really hate, they don't like the opinion announcements, they don't don't want them to be made widely public because there is sort of some spin on it and sometimes justices will hear, they they don't sign up on the opinion announcements, even if they're in the majority. sometimes they will hear an opinion and local off at the end of the session and say i didn't sign up for that part. the opinion announcements are very controversial within the court and that's why they don't want us really quoting from it or using much of it. >> remember what justice so to my are, she gave an interview with linda greenhouse and said no she doesn't read the dissent and then she changed her mind. she ended up, it was very
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interesting. she went into it saying i would read an opinion from the bench and then she felt strongly enough about that to go ahead and do it. >> it only happens a couple times a term when someone really feels deeply. >> do you think if the media got back together, when the justice upstairs finished delivering they might be willing to do that ? >> no. i do recall we usually make tiny increments of headway and we do get same-day transcripts which is a huge help.
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we did once asked the chief justice whether they could release orders. orders are when they add cases to the docket. they used to release those at 10:00 o'clock which is the same time an argument started in the same time they started announcing opinions. what about 930 we said. he thought about it and then later he set aside from the fact that the press wanted it, i couldn't think of any reason not to do it. so now we have orders at 930. these are tiny baby steps but occasionally the court does try to accommodate our needs. in a general way, do you think your job is fairly different from your friends on the right? >> so i've only been in for about a year and a half. before that i was about at abc
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and i've never worked for print, but i think this digital age has put us all in the same area, i think we all look for the bottom line first of all and get the bottom line out as best we can and then we follow it up, at least our team at cnn, we look for the best, people want to hear what the justice said so as quickly as we can we try to find that best couple of sentences to get that out and certainly on the dissent, which for me, it took a little longer although it was there. really quickly we have the television side going and then we moved just as quickly on our digital side because that is a big push at cnn and something that really interest me to be
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able to do that because now, in the old days, i've been in journalism for a while, now if we put a story about justice scalia up, then maybe we can link to some of his oil arguments and then may be late to the interview he gave with justice ginsburg or the talk that they gave and then maybe a little bit about his son on the memorial service so it's a totally different world and it's fascinating, that push on the digital side. >> you actually need to get on air with the tv camera in front of you the mornings of decisions for you more behind-the-scenes. she is ready to go in front of the cameras out there with pete williams, i'm inside and
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sometimes i do go on camera to explain other things because we have a huge news hole. i kind of wear different hats. one of the things i like to try to do is to write internally as well as externally. maybe the white house reporter who cares about this will see things from my angle. it's a different area where you do where a lot of different hats. >> speak about trying to get the news out so quickly, you wrote an insider piece about how much you had written in advance. >> i suspect i'm not alone in this and though wire services have plummeted but the moment this arises, our readers want to know what happened. it's much easier to do this if there are three or four possible outcomes to write each story in advance and propose that immediately and supplement it almost immediately with some quotations and then fairly soon,
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having read it with actual analysis in the sense of the context and consequences. i guess it comes as a surprise that the standard journalistic device of writing be matter ahead of time, which is to say on controversial background that will work in every story and a lead that gives readers the bottom line is something you're not doing between 1005 and 1015, but 1015, but you're trying to get as ready as you can. i have to think my colleagues are in the same vote on this. >> absolutely. >> i've done this for a while so i remember the good old days when you could read the opinion and listen to the justices speak. i've talked to a few lawyers and then have lunch and then call my desk and say here's what i'm miller right for tomorrow's paper.
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what would you say it's 30, 45 seconds, i would say within 45 seconds i have to decide and start reading opinion. >> people literally run to their q. week cubicles. i think i'm more restrained than that. i think i would walk. people go racing out of the room and make sure. >> it's actually very tense, right? >> you don't want to race up and put up the wrong headline. as adam said, we usually have two or three different versions of it. i look at it quickly and i go back to my desk and i try it one more time in 45 seconds have expired so i say, i thought the affirmative-action case would be a 4 - 3 decision striking down it in a narrow way, but i think
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we thought, and it turns out i had a version that they restrict affirmative action. i don't think i had a four, four split but i had some other version. then there was the third one that i hadn't written and that was that they uphold the be affirmative action plan. i had to quickly say uphold that plan and i think in about a minute i said go up with that and there was two sentences and there was this background and contacts. anyway, you can have that stuff sitting there but you don't want to get it wrong. i always find it interesting and fun challenge because we spend a lot of weeks up there where they decide nothing and then, on on
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the thursday, the last thursday of the term, they did affirmative action and immigration. >> it's kind of an afterthought. by the way, 44 split in immigration. >> i'm just getting that story straightened up and they end on this one sentence that says it's for four on immigration. that's a huge story. in california i think that was by by far the story that everyone was interested in. so do it again, 45 seconds and get that up. then again on monday we had two more of the abortion and the public, it's traditionally a job you spend a lot of time preparing and listening to arguments. i would say it's like being a college student where you get to read your regurgitate everything. now we do it in 45 seconds.
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it seems like not only do you have to be prepared and go fast, there's very little time for second got a thing. >> the big cases were easy to understand who won and who lost. the day came where the desk would be going crazy and you're not going to know what the answer is until you had a chance >> everyone was thrown on the healthcare case. everyone who was was not following as close as they should have, there was that second question. i agree we've been lucky written recently that the bottom line is clear.
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>> i thought the last week, when i was getting really tired and i started think of of every way they could rule, i was upset with the last with the abortion case, there were two provisions of that law, there should be admitting privileges and the ambulatory services and i was very worried that the court was going to act differently it was kind of like a game. if one goes out on procedural and one is something different, i spent way too much time on that because i wanted to make sure i was ready in case that happened. >> some justices have said since scalia's death there was an effort in the court to make things a little bit clearer perhaps or to compromise in a clear way, i don't know, it did
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seem like a lot of the opinions were simpler to interpret more quickly to figure out who won and who lost which sometimes, that's really hard. i wonder if any of you have thought about it. on the one hand, they're trying hard to get in an opinion and on other hand the liberals are making up point that they're sticking together that they didn't have so many concurrences in the judgment. almost every year i've asked the question, which is, how do you possibly get a headline out. so-and-so announced a judgment of the court and delivered opinion of the court. justices so-and-so joined in full and these joined in this
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way and so on. [inaudible] >> i know the case you're talking about here's the reason you want to go upstairs. leah wrote the majority. it was confusing as hell. at the end of the oral announcement, he said but you know what, epa 197% of what they wanted. thank you, but that quote at the top of the story and you're not going to be wrong. >> back to how i started, there was a theory that was nothing like that this year. i was hoping to have a question for you and i couldn't find one. >> the contraception case was a little like that. it was unsigned unanimous, but completely opaque and sort of
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parsley declares that both sides are close to an agreement and were gonna send it back to the lower quarters to let them finish up the work we've nudged them toward because were not really judges, were like family court mediators to bring everyone together and both sides declare victory and that's a fairly, i forget what my headline was, it probably wasn't wrong, but maybe, it probably wasn't ideal either because we don't know what it all means. >> i thought this was the term, i've read a number of decisions where it's not really hard to be a supreme court justice project to get seven of you and me and we could be an eight-member court and here's how you do it. you read the briefs on one side and they make some good arguments. then we draft an opinion that says this goes too far and it would be a mistake so we don't want to go that way. on the other hand they make a good argument that not every minor violation is a violation of law and we now vacate the
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lower court based on this opinion. they handed a lot of those cases down with a sort of said, we don't entirely agree with this or that but we can actually decide this case because it's a really close call. will send it back to let the lower court try again. there are a lot of these opinions but didn't really decide the issue in the case and they just sent it back. that's how they agreed to resolve the cases. >> i think that contraceptive case, i don't give ever seen anything like it. it was like here, you people figured out. it's usually the court's job to figure it out and they should've just said, this is a mass, you can straighten it out, you're not that far from each other, you do it. i've just never seen anything like it. >> to address the second part of your question, it is true that this term, the liberal wing
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tends to be quite united where the liberals are more fractured. if that means if they want to block any movement to the right they can, but if they can pick up a vote from kennedy or both, they can then issue a liberal decision. that does does change the dynamics a bit. >> i was interested in the abortion case because ginsburg at oral argument, i thought was really interesting at oral arguments. she played a big role from beginning to end and walked, sort of guided oral arguments there and then of course when the opinion came down, she didn't write but she did write separately which she hadn't done the year before in the gay marriage court case and she wrote separately on something she mentions in speeches a lot which is the impact of those laws which she felt on poor
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women, women without the access to travel. then she threw in this this was basically saying that for lack of a better alternative, if abortion, abortion, if they didn't have access, they might resort to clinics that might be unsafe. i thought it was interesting that she did choose to write separately, to make that point that she has made before and sort of break a little bit from the discipline. >> i suspect she might have liked that assignment. the senior justice in the majority, kennedy gets to make the assignment and he gave it to briar, not ginsburg and i think she would've loved to have that decision. >> i think all of you, i'm not sure if tony is in this category, had other beats before you became a supreme court reporter, how is covering the supreme court the same and how
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is it different from covering covering others? >> were you in that category? >> a long time ago i covered city hall in massachusetts and the courts in new jersey. but the difference, the supreme supreme court is just a unique being. you get used to almost never talking to the people you cover which is pretty rare, and editors would always say well can you call up the justice and asked him about the red sox could see the big red sox fan. i said i'll give it a try and i got a note back saying on matters as controversial as this i must remain silent. on the red sox, they they wouldn't talk to me.
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that's one thing that took a lot of getting used to. >> but you work around it. >> do you ever get to talk to the justice. >> we do have our occasional meetings with them, their social events at the court but it doesn't happen very often. not often at all. >> i covered education for a number of years before i started doing this. i must say the difficulty of writing about education is that everything is mushy. almost all the language, all the terms are mushy. i found it very hard to pin people down to what does that actually mean. i liked it when i started and i kept doing it. like the fact that people in the law business want to get to the bottom of it. what does that really mean. would you explain that to us. i think that's one of the great things about the law. they deal with a lot of, when i was covering education for example, what did the word segregation and desegregation mean. they're usually significant.
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didn't mean stop segregating students or did it mean you have to integrate your city schools by affirmatively desegregating. it was hard to write about things in the education business because there wasn't the same level of precision and focus. i like covering the law because people are much more clear and specific when their arguing some point in trying to be as clear as they can be. >> i've only covered the law but before i cover the court i was a national legal reporter for the times in in new york. that job was much more satisfying than this one because you get to hunt around to find stories nobody else is writing about and travel the country and try to open a window on a major issue that hasn't been touched on, tell cool stories and then you come to washington in your writing the same story everybody else's writing. the journalist impulse is to do something distinctive.
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here we are and it's a wonderful press corps, it's been the highlight of moving to washington but many days were writing the same damn story. you put them side-by-side and they look the same and they have the same quote in the third paragraph and so there's a little frustration and the fact that you don't get to choose your own stories. you're basically doing the stories that nine old people who are in a sense your editors that are assigned to you but they just happen to wear robes. >> i think one of the most difficult things for me, especially near the end of the term is that your caring around in your head four or five cases and they haven't decided it in the court doesn't tell you in advance which opinions they're going to release so you have to sort of toss them around in your head keep them straight and that is a challenge for me. another thing that's not true in other beats is when you're just talking about the supreme, what
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we do, like nominations aside, there are no leads. i think when you cover other leads you're always worried that your competitor is going to get a leak. i think here it's happened, ages ago, but for the most part. >> yeah, every 30 every 30 years. >> right, you're not worried about the leak. my colleagues to cover the white house, that is a concern. >> don't you think this is one of those classic explainer beats? >> i think there's quite a few of them. if you cover science or medicine, a lot of what, i think what you want in a medical writer is somebody who understands medical research. they should understand it well enough to write the story that explains this is a significant advance for this reason or this is questionable.
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i really think the job we do, something like 90% of it is really explaining the court said this and they said it for this reason and the senator said it was mistake and they're trying to give some sense of the significance of what they've decided. it is a frustrating thing as others have alluded to. if you want to scoop some breaking news, you're in the wrong job. i do think it's a worthwhile endeavor to basically try to explain the law and explain what the court is doing. >> on that note, i have a question specifically for you david. the day after the mcdonald opinion came down on the last day of the term, there were a couple of people from the national association of criminal defense lawyers who had a symposium and they said the supreme court rejected the government's efforts.
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nevertheless many and the media led with headlines along the lines of the supreme court makes prosecuting corruption more difficult. the headline should've been, supreme court rejects novel prosecution theories that convert into federal crime. so i went back and looked and your story on the l.a. times, the morning the decision was, the supreme court makes it harder to prosecute for taking bribes. they were obviously thinking about you. i don't know how much control you have over the headline riders at the l.a. times, but do you think these guys from the criminal defense association had a good point? how did you? >> no. >> i thought that would be a
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good headline and an acl newsletter. i did think this was a case that would make it harder to prosecute corruption. i quoted somebody at the university of chicago who said, if i told you that i secretly gave the president's chief chief of staff $1 million to get my client in for 15 meeting with the president to advocate some product and you heard about that, think i think every person that i know would think wow, that was bribery and corruption. the president's chief of staff took $1 million to get this guy on the calendar so he could make his pitch to the president. the only problem is eight people in the country don't think it's a crime and they all sit on the supreme court. you know the facts of the mcdonald's case, don't don't you? this is a situation where the
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guy, this guy, johnny williams has a private plane and he takes the governor on a cross-country trip and he basically says i need your help with this dietary supplement made out of tobacco when he gives his wife at $22000 shopping trip and a rolex watch in a series of favors and every so often he says i need a $50000 loan and it was not money that he had to pay back. >> that's my kind of loan. >> exactly. all secret and the governor has these meetings at the gov.'s mansion to try to get the staff interested in this dietary supplement. the thing is the dietary supplement was useless and none of the people were interested, but he tried. so he gets prosecuted for corruption and it's upheld and they say this is just routine courtesies. >> i've lived in virginia for a lot of years. i didn't know this.
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in other words, if i had a book that i wanted to promote, i could call up the governor and say, having a luncheon at the governor's mansion so so anyway they bought the idea that because the jury, it's unclear to me whether this is a decision where they signed on and said let's have better jury instructions for all this money or whether you could never have a bribe unless the government actually gives you the contract. i'm not sure what it is but anyway i thought this would make it a lot harder to prosecute corruption and i thought most the people who prosecuted said the same thing but maybe they don't agree.
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one is the notion that the court would've taken this case as error correction only not to announce legal principle. they certainly wrote it as it was legal principle. the second one was this rogue thing that was happening but if you went to the argument, the justice department thought this was the correct interpretation of the law. >> in addition to covering the important decisions at the end of the term, most of you, maybe all of you do around up general peace about the court. they had recent articles that i noticed about how the court is turning to the left. i have questions for both of them and tony and marianne can chime into.
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the times had a chart on the front page showing most justices moving to the left over the last 30 years, or at least i thought i saw it on the front page. >> yes it was on the front page but it's a little more complicated than you suggest. the cases are different every turn. some cases get to the court only because they're the perception, recently that the court may move right word like the affirmative action case. how much can those statistics really show? are they really showing the court moving to the left or they reflecting. >> i think the chart you're referring to shows where the individual justices are and i don't think anybody would dispute what the science statistic show which is that thomas was and is the most conservative justice. if the three women are almost in the same place ideologically and prior is a little bit to the right and kennedy is in the middle and chief alito has
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drifted a little bit to the right and roberts to the left. lawyers are weary of data. they like to argue individual cases. if you look at the numbers in large enough magnitude, patterns emerge and those patterns, as it happens are completely consistent with our intuitions, it's true that in the last couple of terms, they have played a small margin margin but nonetheless they have issued more liberal decisions than any court. that seems noteworthy to me. that also seems consistent with my intuition, but it doesn't matter. data is data and if the numbers are large enough they tell us something. >> we talk about various events
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that if justice scalia had lived this would look and feel like a very different term. on february 9, the court issued a surprise order on a 5 - for vote to block the climate change policy from going into effect and that's going to put it on hold for a couple years. it was a real surprise, they've almost never done anything like that. it was a big decision blocking the climate change plan. scalia died four days later. had he lived, they would've had a 5 - for decision throwing out the agency fees and there would have been a five, probably in a fairly broad opinion that at least some of the language would have been rebuked to the president and then the two cases where it tilted the other way because of kennedy on affirmative action and abortion.
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affirmative action would've deadlocked. >> it would've been four - 4. >> so i just thought, it is true that a few cases could tip you very much of the term but last year, you you remember we had the gay marriage decision and another decision upholding the health care plan. this year the big decisions at the end on affirmative-action and abortion, those are fairly big victories because kennedy tilted to the left, you could talk about that at some length, those are cases that turned out to depend a lot on the evidence. i think in the end he was convinced that the texas abortion couldn't be defended as a health regulation and that the texas affirmative action plan
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was a narrowly tailored plan which he thought was okay then before. at the end of the term, you always have to pick, what do you say about a term that's a little of this in a little of that. i think 70 could argue that the court hasn't shifted decisively laughed but when you go through a couple terms were the big ones come out in the left side wins, it seems like a more liberal. >> think back to october, it sure looked like, also, the contraceptive case, how would that have come down if scalia lived. it looked like this would be the empire strikes back. at a minimum, clearly they were going to deal a devastating blow to public unions. there were a whole bunch of reasons why a term that looked like it was going right shifts heavily to the left.
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>> to me what it was was a term that didn't go to the right, sort of what you were saying. they never would've been there except everyone thought they could over rule the 40-year-old but they didn't succeed and they didn't make the law any more liberal than it had been for 40 years. the texas abortion case never would have been there except people in texas and other states that they could push back against the right to reap produce choice. >> but it was the abortion-rights group who brought the case to the court. >> and they thought they could get away with the legislation. >> so every time somebody on the right does something that's devious and everyone someone on the left does something, it's doing god's work. >> did the right to abortion actually get more protection now than it had? i think the answer is no. >> more importantly, did the right to abortion get reaffirmed and broadened and the answer to that has to be yes. >> i think it's in a safer place than it has been in a very long
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time. i don't see that changing back. you never know, if president trump appoint somebody, but i think we've sort of talked around it, but i wonder if what people's theory is and why justice kennedy moved on affirmative-action and on abortion-rights, was it a centrifugal force or the balance shifted to the left because scalia died and he felt he had to go there or what do you think it was? >> you had a bit of a theory about the two justices who grew up in california in that respect >> we did make a little more of the california angle than i wanted it to but i did mention that it is a surprise that there are two california natives on the court. he grew up in san francisco and
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went to harvard wrote harvard and kennedy grew up. the thing that i thought, the long story here in the short story, over a lot of years when i've talked to law professions and others, they say who was your boss friendly with around the building or whatever. i was always surprised how many people would say, regarding kennedy, they seem to be very friendly, they spend a lot of time talking and i never figure that out because they were always on opposite sides but briar is a guy who worked for ted kennedy in the senate before he became a judge. he likes to talk about those years and one of the things he always talks about with kennedy is how even though he's known as this liberal lion, he really liked the idea of being able to work with republicans.
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he would find a republican who is really interested in school this school this or that many find a republican who was interested in healthcare and he loved being able to work and find republican that they agreed on something and find a way to do some legislation. i always thought briar when he tells the story, that is sort of something values very much. he always talks about how he was in morning after sandra day o'connor left the court. she was somebody who was definitely not a rigid ideologue who cared about the doctrine. she cared about the facts and was in the middle and you wouldn't know if she would tilt laughter tilt right. it sort of depended on the issue. kennedy is kind of like that. he does have a middle position.
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the conservatives thought, any use of races unconstitutional. that was not kennedy's view. he thought diversity was a compelling compelling interest but it had to be a really narrow, the question was could you convince him that the texas plan is narrow or is there to much of a thumb on the scale. anyway i think he and breyer could talk these things out and he ended up assigning breyer the abortion case and i think adam mentioned earlier, i think it's ruth ginsburg would have loved to have written but he knew breyer would write one of these very matter-of-fact opinions, no rhetoric, he'd say the evidence shows these regulations are not justified. the cost is very high and the benefits are low therefore texas loses. that's exactly the kind of opinion that kennedy could agree with.
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he wouldn't like an opinion that would nearly slam the legislature for sham legislation for example. but let's not overlook the fact that here are two things we knew about kennedy before the decisions came down. he had never, in his time on the court voted to uphold any affirmative action program. he had voted to uphold 20 abortion restrictions and voted against only one. this is someone where the pre-decision data suggests one set of outcomes and we get a big surprise going the other way. >> alito, in the affirmative-action case called him on it and to the extent that there was a surprise, particularly after oral arguments with kennedy, at one point i think he said, because you remember, this is the second time we had gotten the affirmative-action case. he didn't seem to like it. he said you know, this this is the same case or something.
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so i think alito really said, what happened or something happened. >> something strange is going on or i thought that was very interesting that he called that and he called early in that dissent. >> another thing that was strange about his dissent, i think it's probably the first oral dissent that ever focused on race and severability clauses >> thomas did defend the law under the texas abortion restrictions, alito was joined by the chief and really only talked procedure. they didn't seem to be prepared to defend this law. how do you cover that? do you say alito mounted a vigorous oral dissent focusing on race?
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>> no, i do not say that. i think my editor. >> i think think it stuck into my story but we have lawyers, when i covered the supreme court they called me the reporter in charge of latin phrases. you have to work them in sometimes. >> so how did y'all cover the oral defense? there really was entirely procedural - briefly. >> i think i gave it one sentence. it's hard to write about it in a big case like that could there's a lot of other things to say but if you spend all your time saying this case was procedurally screwed up elation of decided it, how many people want to read about that the day after a big decision? >> so justice alito had the only
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two oral defense this term and justice thomas had 18 defenses, more than one third of the total number of defense written by all the justices and he had 39 signed opinions which is more than justice kennedy and the chief combined, why do you think he's writing so much and trying to make up for never asking a question from the bench? how much did his separate opinion or separate opinions in general affect your reporting? >> i think when you look at the case this term, when we were all, when i was downstairs, i wasn't upstairs when he asked a question for the first time in ten years, i think what's interesting is that he hadn't asked a question and oral argument but he reads his opinions with his booming baritone voice. he is very, when he gives public
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appearances, he talks a lot. he has given various reasons why he doesn't and one of the reasons why is that he feels sometimes the justices are doing too much talking on the bench and in that case it came soon after the death of justice scalia, and the court and they had declined to take up the second amendment issue in the case. it meant something to him so that triggered him to ask a series of ten questions and may be, he's true to his word. he wasn't on the bench and he probably would've asked that line of questioning. >> the advocate was about to sit down early so he wasn't wasting anyone's time as you would put it. >> right. then i felt like that decision came down the last day and i
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feel like i haven't given enough time to his dissent in that case, but i thought it was very interesting because just because he doesn't ask questions and oral argument, those notions that he's shy or you never hear him speak, you can hear him speak. i thought that that case was interesting of him sticking to his word. he'll ask a question when he thinks the question needs to be asked. >> i always think of him, different justices view the job very differently. we've had a couple on the right, justice thomas and justice scalia and on the left at soda mayor and ruth ginsburg. there's a good piece in the paper that all these dissents
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have written on the criminal justice system and she speaking to a different audience and trying to say, there's a real problem in the criminal justice system but she's writing those frequently alone. she speaking to an audience out there and justice thomas has always wanted to do that but from the time he arrived, he was always had a sense of his own to the contrarian view. he sort of a court of one peer he's always had a distinctive view on all sorts of things and he loves to sort of write one of those opinions that says all my colleagues are wrong and they've been wrong for 60 years. he comes back and says we should interpret this as we did during the 1920. commerce means taking goods across state lines. it doesn't mean regulating businesses. he's always had that instinct to say, this entire area of the law is wrong and here is how it should be rethought. that's what he likes to do. there's quite a few who are much
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more focused on in the middle, how can we decide these cases but there really are justices on both wings that are speaking to a larger audience to say our court is completely off-base in this area of the law. >> i saw a law professor, might've been josh brockman who ran a word search through and it would pull up all the things he'd like to see overruled. it would take out half the constitutional law. >> i know there's at least three cases like that. he basically said this whole idea of different levels of scrutiny, rational basis, it doesn't make any sense. may not seem so crazy but it certainly is. you been doing it wrong since
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the 1930s. he thought this lifetime ban on possession of firearms by people convicted of certain crimes was unconstitutional and in violation of the second amendment. in heaven well, against abbott which had to do with how a state decides who to count when it's setting aside legislative district he said the court has never provided a sound basis for the one person one vote principle. let's just go back to some counties get more votes than of other counties. these are certainly interesting ideas because they write the level of being worth reporting on, either when you report on a particular case or in a more general way that you talk about these. >> it's definitely worth reporting.
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justice thomas is a justice who doesn't believe in devices. he just thinks relying on precedent blindly is a dumb idea and he's willing to upset the applecart quite often. it puts him outside the mainstream of legal thinking. it certainly deserves coverage. >> sometimes when he has to decide and judge a case, we had this case about the juries and the evidence coming forward that the prosecutor had sort of color-coded the jurors, each
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potential juror, and it was unquestionably clear that they were trying to eliminate all the blocks from the jury. so when this this came out, the court had no problem saying if were serious about not allowing prosecutors to use race, this is a classic example, john roberts said said it was nonsense to suggest there were legitimate reasons for this. justice thomas writes that it's a solo dissent saying i'm not convinced that the fact that they've struck each of these black jurors who are seemingly transparent phony reasons amounts to racial discrimination i ended up writing about some of his dissents that i think are hard to think that was the right call.
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>> we have a little bit of time left, let's talk talk a little bit about the future. in my advertisement that went out, i said will they hold a hearing if hillary clinton wins and will donald trump really nominate judge judy for the supreme court. you have any idea of what the future could be? >> i don't cover the senate so i can't. >> guest: that. i will say i have talked to conservative lawyers, conservative activists who have said there's got to be a vote and that's what they've told me on backgrounds, some of them. again, i don't cover that grant so i don't know how they do that. >> i don't know anything about the senate either in this is a
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big assumption, but assuming they are rational actors, if the republicans know they're going to face hillary clinton as president and they have the opportunity to confirm a moderate 63-year-old, moderate 63-year-old, they would be insane not to. >> i agree with that for the same reason. it's just a guess, but garland is the kind of judge that all the republicans would think, they think this is the absolute best working to get from the obama and administration. they have a very good person but he's not as liberal as almost anybody that hillary clinton would pick so i would think as adam said, if mrs. clinton was elected in november, i would think that some republicans think maybe it's a better idea to confirm their garland now. >> another change, it went a little hype profile but they
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retired at the end of june and his chief deputy will be the acting at least until next spring i suppose. do you think that's going to make any difference to how all this operates or what goes on at the court? >> i don't think so. i think they've worked together for quite a while and he ran a tight ship and they are in a sense coasting. they said the docket for next term is not that huge. :
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>> more than likely they were not pleased with the way he was treated with the healthcare area particularly as we said earlier with that ad that went out. >> you give a bunch of energy use as he was leaving. he made a point that it was a self-conscious decision in most cases to keep it understated and businesslike. he thought that, that earned him
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the opportunity occasionally to move the dial to something a little more rhetorical and emotional for something that really matter to him. as you are saying not every advocate would be giving the deference but i think he was earning that deference by five years of outstanding service. >> we have about ten minutes to go. the people have questions marcia how should we handle it? raise their hand in the microphone will come to them. if you have a question you can let yourself be known and there is one on the side. >> hello. often times it seems often to very important decisions will be released on the same day. this year the whole health and the well-being decision came down the same day. one, do you think there is some stratagene on the court and timing the release of the decision to see that one of the decisions does not get as much
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coverage as the other. the second question is you as a reporter, do you advocate with your editor to make sure that the quote lesser decision in this case, waben gets the coverage that it deserves? >> as i said with the waben decision i thought it was interesting. i actually did write it. i did not write it as quickly as i got the other ones out so i absolutely think that is an important thing to do. i think and i will circle back to it particularly that dissent sometime. as far as i think the justices say that our opinions are released when they are ready, i was very pleased last term that we do not get too big ones in one day because that makes life complicated. it makes a couple get that is
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busy trying to figure out what they say. this term when we got to affirmative action and immigration, at least the immigration was a 4 - four scoremac. so we did not suddenly have to go through. i remember for the drama you are in that press room and they announce it in one room and they come out with the affirmative action and you are reading and working on it and i think did we not get the four - four on dollar general? if so then there is a four - four on dollar general and you're same for dashboard and someone and someone says that is not it. then you race back in for the four-four. so it is a busy day. but i absolutely try and art team at cnn two, we did not want to lose that waben decision because it was important.
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>> do you have high school final type nightmares during the last week of the term? oh gosh, i came without my pencil, i miss this this decision? >> absolutely. those last two weeks for me are very difficult, particularly this term. not only do you want to know every way the court could rule so you are not surprised, that is a tough one if you're suddenly surprised. but then you had the added burden of the potential of a four - four or a potential of an order for reargument. maybe you know you say okay there's not high percentage of something like this happening but you have to be prepared for it. so it is a little nerve making the last couple of weeks. >> asked whether there was a strategy, don't don't appreciate it if there is, but it is hard to know, this was a pretty bad year on that score. some years they have done better about spacing them out at the end. i would just a for myself, i find there are certain number of cases that i will say that or beat level interest and that tran7, the the gun case i thought was in that category.
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on a slow day, i would love to write about that case. it is an interesting small spin on what they said before. anybody who is guilty of a misdemeanor crime or domestic violence, no gun, this no gun, this was a question about what if he pleads guilty and recklessness is part of it. so it cannot change the law and a big way, but if you put the words gone and domestic violence in the same story a lot of people are going to read it. i would read it. it is an interesting subject. on subject. on the other hand, if the court does at the same day they decided and affirmative action and immigration case, i did not write about it. i think we put something in our papers about it but those were two big stories that i had to devote a lot of time to. there is another case that was pending about drunken drivers and breathalyzer test and blood test. i thought those those a great subject because everybody
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can immediately understand do you does the police officer need a search warrant before requiring someone to take a breathalyzer? the answer was no, six - two. but how about a blood test? it was different, anyway a very interesting subject but again, i took the view that i can only write two big stories in do them in a decent way. if i do a third when i can type them fast but there's a lot of potential to screw up insights. so i thought i'm going to do too big stories and not the third. so when you get one of these years were there is not a lot of big decisions it is really irritating and frustrating that they all get bunched up on two days at the end. >> any other questions? >> to what extent do you think the justices, particularly justice kennedy are influenced by public opinion?
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>> justice ginsburg says and i think it is a nice place in a this is true of all of them, they are not influenced by the weather of public opinion but they are influenced by the general climate. think about same-sex marriage. ten or 11 years ago in the massachusetts supreme judicial court first announced that there is such a right in massachusetts it was an earthquake. nobody on that day would have thought that a decade later the supreme court would announce that it's a federal constitutional right. but public opinion moved so fast and there have been so much activism in litigation that it changed the climate and allowed five people including justice kennedy who wrote to come have a different view of the world in which the constitution requires. so i do not think they care about momentary blips in public opinion. i do think they care in a general way. they live in the same world we do. they look around and come to the conclusions. >> i agree with that. remember too that that kennedy would be very much aware of the fact that
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if there's a ruling that the constitutional right to gay marriage is that changing the law in ten or 12 states, or 45 states? remember states? remember by the time they finally got around to ruling on that two thirds, three quarters of the state through legislation or court gay marriage was already legal. they were making a national announcement to say this is a national role as a national constitutional right. i think just like the public opinion switched, a series of state law switched so they were not sweeping aside 45 laws in 50 states. this is a little harder to prove but i have to think that one reason they keep turning down second amendment cases is because the climate on guns so fraught that they do not want to be issuing some decision the morning after some mesh shooting
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-- mass shooting. >> you mention the liberal block of justices. and how they stick together, after the upcoming election of the core continues to move to the left, do you think we'll see some differences in opinion from breaking out from that block? >> i think if we get a justice garland they're are going to be tightly bunched as the charge shows. on the left, one question that i would love to hear other people say is i'm assuming there is a solid liberal justice majority in the court. what they do something with citizens united? what they do something with heller? the question on this goes back to the point are was making, the left has mostly blocked movement to the right. what if the left actually has five voices to the left, what paths to the left may they take? i think that's an interesting
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question to think about going forward. >> i sure agree. on the road road we do not know whether we'll see this, but there'll be slits on the left to. justice sotomayor or others may say that we may go further and some others may say we may not go that far. so you'll see a split, concurring opinions, you'll see splits. as adam has quickly said, they have been sort of blocking things they think that conservatives want to change the lawn a big way there blocking things. but the majority, they don't, justice sotomayor has a different view of things such as justice breyer does. >> it is 158 p.m., i'm sure our friends at c-span will be happy if we wrap up within an hour and a half. thank you all very much for coming. see you again next year. [applause].
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tonight on c-span two, story argument in a case challenging a north carolina election law. the. the capitol hill discussion about the criminal justice system. judicial branch reporters look back at the supreme court's recently concluded term. >> tomorrow and c-span two, an interview with federal reserve governor, daniel cirillo about financial regulations and monetary policy. he will talk to wall street journal correspondent john hose and wrap, that is live at 9:00 a.m. eastern on c-span2. >> i read to the white house coverage continues of the democratic national committee platform committee taking place live in orlando, friday july 8 starting at 3:00 p.m. eastern. it will continue saturday july 9 at 9:00 a.m. eastern.
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committee members will debate and vote on the committee members platform for the selection. live coverage coverage on c-span, c-span radio, and c-span.org. >> if you are going to invest additional $100 million into higher education in the commonwealth we have got to change the way we deliver education and we also have to expect more for the dollars that we are getting. >> sunday night on q&a, aei resident fellow gerard robinson talks about the state of education in the us. >> there's a body of literature that is clear that there are certain courses you should take, math, science, english, that should be in place if you expect to be successful in college. to simply accept students who haven't filled that curriculum obligation and let them into schools i think is doing a great disservice to them. it is slowing the effort of affirmative action which is something i support. >> sunday night night at 8:00 p.m. eastern on c-span's q&a.
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>> the naacp in north carolina suing to block implementation of an election on the state that cuts back on early voting, eliminate eliminate same-day registration, requires voters show photo ids. the fourth circuit court of appeals recently heard in oral argument in case of north carolina naacp versus mcquarrie. this is an hour and a half. >> good morning. anna baldwin represented the united states. to the order of the presentation this morning i'm going to be addressing the united states section to claim through both its intent and wrong. ms. harris is going to be focusing on the results prong
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and were going to be looking at the constitutional claim and addressing any questions about implementation. >> with the closing which i might find exclusive but that is not the case here. if the emphasis is drawn by the district court we can do or do diligence. >> to me that is the core of the case. >> certainly your honor. under. under the split standard of the district court applied the wrong legal's dander the facts found by the district court are binding. to start with the intent analysis. there are critical errors in the legal analysis in the district court's analysis of the united states intent claim that framed the analysis. we have to start with the facts that passing hd 5890 north carolina legislator acted to block growing african-american political power just as black north carolina and started to begin to experience poetical game. in looking at
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this claim, the district court district court failed to take account of the fact that even as the dependence expert testified in north carolina the best predictor of voting behavior is not party registration, but race. so a proper intent analysis would've required the district court to expressly consider whether passage of hd 589 was motivated in part by what the supreme court cause a troubling blend of race and politics. the district court committed illegal air and failing to analyze plaintiff's intent claim through the framework that the supreme court set out. >> when you speak to the claim that section two? or the 14th amendment, intentional discrimination and is there a difference difference? >> under the 14th amendment intentional discrimination is the same standard. the united states is pressing his claim under the guise of section two but the standard is the same. the question is was the legislative action motivated in part by a racially
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discriminatory purpose. >> in any any event you are presenting your constitutional argument here and yet there is a section to results. should we reach that one first? >> your honor we think that understand section to results claim, in this case it is helpful in the tenuous factor in particular to look at the intent claim and the parties would ask of the court to read both the result in intent violation because the nature of the release were seeking. were seeking relief under section 3c of the voting rights act which requires the finding. >> your colleague who is going to argue last is going to explain that also, right? >> she is going to be addressing the constitutional claim. but in terms of the intent climb, their rational discriminatory intent claim is necessary under the voting right back to retrieve your a preclearance recovered
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chip for under section three c. that is why that finding needs to be made under the intent claim. >> looking at the legal -- >> we understand you want everything, but i think my calyx questions he was, in your first brief you did the intent claim first. in the second brief you did your intent claim second, so which is first? >> your honor, we think those are very strong claims. with respect to both -- >> the question that were going to is typically we do not do a constitutional issue if we can resolve it on open ground. the question is here under section two, should we first address that and then if we reach a resolution their course you would like for us to go for immediate reason to the constitutional question but should we start at least there? >> i think in terms of what is very practically important, the court, the parties, were all aware of the fact that there's
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an election upcoming in november. the importance of having some kind of remedy in place and having a reversal and an injunction and joined the decision that are discriminatory backing mainly be done under the results claim. this court could simply correct that we glares that the court made. >> and i cannot be done under the and ten claim? >> because there is a legal air in failing to account for the analysis and the seismic growth, the significance of turnout, -- >> as my other colleague said, i think we understand all those arguments, basically what you have done in your first presentation of is glover your brief with us, you can rest assure we read the brief. i would be a little more interested in the specifics if you can give them to me. for example, did you present at the trial any expert data predictions on what the 214 voter turnout would have been without the new statue? >> no your honor in fact, we
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explain we explain why that is not possible. doctor stuart testified that in order to predict what 2014 would have been, not just doing the simplistic comparisons that the district court did you need more elections, more states, more data in order to do that. >> we know what it was under the statute, did you have any expert try to make a prediction what it would have been if you had not had the new statute in place? >> what are some factual testimony your honor that you do not need expert testimony. we know if the statute had not been in place that more than 1600 voters who cast out of pre-stink ballots were not counted. those ballots could've been counted. we know that for the i believe it's nearly over 12,000 voters who registered after the book closing period, after the 25 day
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deadline but before the election, those waters would've been able to take advantage of same-day registration. those waters same-day registration. those voters cannot do that under this statute. so the notion that if were talking about turnout, the notion that the united states and the plaintiff did not prove that this law impacted the number of voters who are able to vote, that is simply not true. there's thousands of voters on the uncontested factual record who were shut out of the political process under this bill. what the district court did and its results analysis the critical air there is looking at two numbers rather than the numbers that the voters were concretely shut out of the process. they said what was about turnout in 2010 and what was turnout in 2014. as everybody's experts 14. as everybody's experts testified, you cannot measure the impact of an election law just by looking at those two numbers. in 2010 you had a you had a 10000, $10 million senate race, you had a hundred million dollar senate race in 2014. of course that is going to have an impact. also looking at turnout, of course the statute prohibits
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laws that have an abridging effect as well as outright denial. on this record we have clearly proven outright denial but it is wrong to set up a standard where you have to show that voters are concretely shut out in do not take extraordinary efforts to overcome that burden as the record in this case shows that there were extraordinary efforts organized by churches to counteract the effects of this law. >> i have have another factual question? you talk about the 72 early voting sites. is there any evidence in the record in terms of whether they were located in black or white communities, republican or democratic areas? >> your honor, think one thing i would like -- >> i'm interested in your explanation but is there anything in the record about that? >> i do not believe so and if i am wrong i will -- so one thing that i think is important to clarify in our challenge to the
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early voting voting challenge is that the united states is not challenging the only portion of the law that defendants have asserted rationale for which is equalizing the locations within counties. we are not challenging that. we are challenging cutbacks to the number of days of early voting. that is something to which the defendants have had no rest. >> part of your argument, maybe i misunderstood your argument was that voting, one of the problems was the board of elections was given this authority to move voting sites around and they could in that way discriminate against minority voters. is that not part of your plane question i. >> that is not part of her claim. in fact in the reverse sort of this estate has rely more on the fact that the location of early voting centers and arguing that they were used to benefit african-american and democratic voters. we we are not making a claim about the location of the
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early voting centers, if anything where thinking the state's reliance on that argument is basically an omission of what the facts in this case show that recent party are tied together north carolina. >> that is part of your recent party argument. that's what i'm asking you. >> were not claiming that the new locations are old locations discriminate against african-american voters. what were claiming is the cutbacks to early voting, eliminating 70s and particularly the lemonade in a sunday where the record shows that in 200849% of the voters who use that african-american in 2012 that eliminated some 43%. that's where the disproportionate impact is, it's in the cut and the number of days. were not challenging not challenging the location issues under the bill. >> so the answer to the original question is because you believe there is a legal air you do not
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have to for this with the district court. >> no, i mean that if the critical facts before the court are not contested. i think you said that you submitted a lot of this case by stipulation. we agree, the inference is that the district court drew from the fact that because the framework that it had wrongly adopted in the cases of the result claim it elevated turnout above every other kind of metric where to say that as long as aggregate turn it goes up, as long as more black voters voted in 2014 then thousand 14 then voted in 2010, you cannot have a discriminate tory burden and that's not the case. with sun day registration we showed what the discriminatory burden is. it this is not just a statue, is that african american voters are more likely to use that when they're more likely to use that because of reasons connected to history of discrimination and importantly the removal of that.
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it's disparately burdens and amplifies the fact that discrimination because of the literacy deficit. that is not just speculation. the best of it is some of that is in the incomplete border registration that you see in 2014 that the voters were going to have more problems submitting the voter registration application, feeling to check a box or something, they are they are disproportionately african-american. and taken away same-day registration where you had an opportunity to correct those errors is going to desperately burden african-americans. that is the way in which in particular the burden that belong our chemo to been greater. you take away a week of early voting. you take away the opportunity for african-american voters to you same-day registration during that period, the more you take away that early morning. were voters can show up at any precinct the more likely there to end up in the wrong precinct on election day. >> what is your best evidence connecting that burden to the
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historical discrimination? >> i mean i think the path that this court set out is that you start with the discriminatory burden show we show that through the disparate you and we also short through the socioeconomic effects of discrimination that amplify the fact that it is going to be more difficult for voters to navigate the process in north carolina without those. so i give an example of a voter like gwendolyn farrington, think some of the individual voters bring to light the uncontested numerical socio- economic and disparate used testimony that she is a voter who works six days a week, 12 hours a day, she had voted early in 2008 and 2012. she did not have time to vote
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early during the compressed early voting. in 2014. she voted near her workplace because she worked on election day from 6:0e could have not got to her correct polling place in the time allotted because she had to pick up her adult children like 27% adult children like 27% of african-americans, three times higher than whites. there are transportation difficulties in her family wears most adults rely on one car. you see the same example of carolyn cottingham of the ways in which the birds in this case are committed. she was the first time voters who you - to the polls had prior election. she works three jobs to make ends meet. on meet. on election day she did not know where her correct polling place west so she voted close to her job. even if they had told her she was a voting in the incorrect precinct she would not have had time to go to the correct precinct because it is there be penalties of being later to work. the same the one in washington. >> thank you very much honor.
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[inaudible] >> i am -- good morning your honor. i am here on behalf of the north carolina state conference of the naacp and other plaintiffs in that case. many of whom are here in the courtroom today. i will primarily address the section to claim but hope to, briefly in the racial intent. we do, the north carolina double its naacp is looking at both the section to racial claim. >> you'll open your comments will focus on section two?
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>> yes i plan to primarily focus on results. your honors, the plaintiff, after being with you in 2014 went to trial, to trials and in those trials we applied the framework from the jingles case and from this legal voter case in terms of how to prove a textbook section two case. i want to talk briefly about that so i just want to summarize that and that i want to talk about the heirs that the district court made that cause is you is your honor the inferences drawn by the district court to be legal, painted by legal air, but for the league of women voters we prove three critical case set the facts, one
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african americans disproportionately view same-day registration under precinct and the other eliminated practices and disproportionately do not have photo id. in the case of both of those practices those disparities were proven to be statistically significant which means they are not random, which means that under all race discrimination laws the significance and disparity tells you you need to look further. it doesn't tell you that you prevail but it tells you you need to look further. that is what what the second and third prong of the league of women voters have tell us. >> so do you believe that section two result claim has a minimalistic impact threshold? for example it is out of precinct voting only impacting 20 people would it be liable claim?
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>> i'm sorry, 20 people but racially disproportionate? this is your section two result. >> 20 people are affected and it's racially disproportionate, i think that you would meet that thirst and i don't office 20 people up its statistical significance of that would be possible but you might reach the disproportionate youth prong but you probably would not succeed on the rest of the test particularly when you get to the state justification for what it is doing, if it is eliminating a practice that only affects 20 people i think in the totality of the circumstances a claim may not succeed. >> there are some possibility? i think you have to apply the totality of the circumstances in all situations.
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but as a voting rights lawyer looking at that i would not expect a claim to succeed unless there's some unusual effect that i do not know about here. >> with the answer be somewhat different if we were looking at the section two discrimination which you just addressed a post to the section to results? >> yes, intentional discrimination require, that the end of it. the laws invalid and needs to be enjoined if it is tainted by in part by racial intent. yes,. >> so let me proceed to the second and third prong witches once you have disparate youth, that is not always contrary to some of the claims from the defendants, we also proved as ms. baldwin set a connection between the connection between the racial history and its
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current impactor vestiges of racial discrimination that exist in an impact of african-american and latino voters in the state today and some of those connections are described on pages 12-14 of our -- as an in terms of the critical fact that the district court found, the district court did find that connection between the vestiges and the lemonade practices. for example the district court said it is easy to see a connection between certain reasons for ending up in the incomplete and literacy. and then the district court found that african-americans vestige of discrimination is literacy and the benchmark of the practice which is same-day registration produces virtually no incomplete registration, that
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is the interaction between the league of women voters test shows us is a classic case of section two violation. now what caused the district court once you get to those three click critical facts and we proved eight of the senate factors what led the district court astray and not ruling in favor of the plaintiff? in the first think that the district court did was it created a new causation requirement, it is not been required in any section or any governing law and that causation requirement instead of looking at the connection between the vestige, the eliminated practice the district court said you have to prove that the eliminated practices caused an increase in registration or turnout.
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that is not the causation requirement from league of women voters or any other precedents that is governing this case. for example the district court set on page 347 of its opinion, plaintiffs failed to show same-day registration is responsible for the african-american league over all other races in registration. and they said the same thing a page 355 about turnout. that is not a causation requirement in the case law. that is the primary mistake that the district court make. >> i'm sorry, tell tell me what it should have said instead. >> with the district court should have done, we established the three prongs of league of women voters in the way proved the senate factors in those circumstances the district court should have found -- and a
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bottom line of what you want, a course that was really so you would have been from a summary judgment. so there were factual disputes, right? >> i think -- >> let me go to an easier question for you. i won't let you explain why you went for that if all the facts were in your favor, but i would like to know is you made this causation analysis and what should the analysis have been instead might be at the question of masking you. >> i will answer that question, i will say briefly that from the beginning there were facts in dispute. the district court found the critical fact in our favor and that, so what the district court should have done, i mean it is. >> i think the question is relative, i think a couple of questions and that is that you are saying that the district court described in think it is
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described as a heightened cod station stander. but you're asking what should he has applied. it's pretty straightforward. and i think the confusion is that he did both, he applied the correct standard and he found all of the facts that lead to a section two violation and then he went and, that was enough. that was the senate factors, that is the only causation requirement. so then he instead of moving forward to the next step which would've been binding signing the violation he veered off the road into a new causation requirement because there is nothing more the district court needed to do other then apply the league of women voters test which he did and found those facts in our favor. i think the district court, the veering off the road really is exemplified by the district
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court reliance on the 2014 turnout data to essentially chop the actual evidence that plaintiffs had a both burden and of a connection of the burden through the vestiges of discrimination. >> so let me ask you this question, under the test that you indicate here, and the same question i asked earlier, what would be her best evidence to show this connection between this burden and the historical discrimination? >> that evidences on page 12-14 of our reply and we present evidence on each claim. so for same-day registration we show literacy disadvantages as well as transportation disadvantages, all connected to the same date registration
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who'll ameliorate because you only have to go wants to register and vote and if you have any literacy issues there are people there who will make sure that you do not leave something out your registration is not processed. we did that for each of the claims and different evidence to connect the eliminated practice to the vestige specific to that particular claim. and i know i don't have much time left so i would like to make a couple of comments on intentional discrimination if i may. they are what i would say. >> section two discrimination or the 14th amendment? >> both, it's it's the same. my comments go to both.
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what i would say there is that the plaintiffs, the evidence show show that plaintiffs prove that the arlington heights factor and it said in a brief we proved that all of the changes approved after the shelby decision disfavored african-americans and we also proved that virtually all of the reasons that the legislator stated at the time in the legislative record were simply not true. the legislators in the face of that asserted legislative privilege and never came forward and put their credibility under oath behind any other reason then they might say that they did what they did in this bill and therefore we believe that there is only one conclusion that can be made of this record in terms of racial intent and
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that is all of the evidence support and required a finding that this law was enacted for racial intent. >> if that's true doesn't the burden shifted the defendant in this case? >> yes, they would then be able to try to prove that they would've done the same thing without the racial intent, but they never made any effort to do that. they specifically said that the amendment to the photo id law, they were not claiming that they cured any racial intent that existed in the original. >> where did they say that? >> they said that, it cited in our brief, they said it will where introducing a piece of evidence that would have shown that the intent carried forward through the amendment they said that we are not making that claim and then the evidence we
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withdrew the evidence. so as to the record. >> before you sit down, so what is your view on the timeline for implementing or dismantling each one of these mechanisms? >> ms. -- is a leading expert on that but what we would say is that it starts in july. >> that's a ritual talk about that,. >> thank you. i just want to mention in my four seconds remaining that we also have a claim regarding latino voters and in addition we made that claim through the same type of evidence, it is not highlighted as much in the brief but that evidences in a footnote the fact that the district court that are missing regarding african-americans exist in a huge way with regard to latinos which is their registration and turnout in north carolina is extensively lower than for either white or african-american. thank you.
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>> allison raikes for the plaintiff. i will discuss in the remaining constitutional claims, anderson verdict 14th amendment claims in 2016 claims claims and answer any questions you have about implementation. >> maybe you can answer that question. up slowly. >> what is ample time for this court to remedy the flaws in house bill 589. because of this courts same-day registration and out of precinct or the law, they've been implemented in the last three elections, none none of the infrastructure has been dismantled. so there is just no problem was same-day and out of precinct, with id early voting in preregistration there is still ample time to set up those systems, set up a system for
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early voting and to educate voters about these changes. >> i understand ample time but i'm looking for a little bit more specific information. >> certainly. >> were talking about the day after the long stay the year but were getting shorter down. >> so right now the early voting plans are due july 29. that is not a hard and fast deadline by any stretch of the imagination. the state board of election continues to review early voting plans through august and sometime into september asking them to change their early voting trends of their problems. additionally, with at least 70% of the counties use as the early voting site their county board of election site or in lewisite, it's usually in the same building. so if we really implement 17 days, not only does the counties have time to come up within early voting plant to put that into effect, they're going to be using for the most part at least one of the same sites they already have in place. it is is just opening it up for voters for next are seven
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days, although they only really have to do it in the weekdays. with photo id, there is an opportunity to educate voters about this change that they will not be asked for photo id, a voter guide goes out, goes to the printer at the end of august, again that again that is not hard and fast deadline, that is a great opportunity for the state to educate voters that just like the last three alleged election same-day and out of precinct will be available to you, here the new early voting schedule, and you will not be asked to show a photo id when you show up to vote. so these are some of the key deadlines but they are flexible and they get changed. so in 2012 the early voting to man was so great that the state board of election, during early election, during early voting ordered counties to provide extra time. >> so these are the same amount of time is necessary either to affirm or reverse this is out yourself telling us?
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>> if you're going to reverse the district court on the early voting and voter id, the sooner you vote the better. aim was same-day registration and out of precinct. it's not relevant. the infrastructure is in place and we are ready to go for the 2016 election. on your question on implementation i would like to turn very briefly to the constitutional claims and note that under the verdict the state is not free to just give and take away at whim mechanisms for participating in the political process. >> this is different from the 14th amendment of the discrimination claim. this is is a general claim you're making. you don't need to show discrimination to get there but we then address that in a previous preliminary justice opinion in the united states is not pursuing this claim. i'm just thinking in terms of proof of it because essentially what you're dealing with his
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non- affirmative type measures and in that context i do not know of many cases that have addressed in this particular context. >> the courts in the six circuit have been active in addressing anderson verdict claims recently since 2012, two circuit cases in the last month, and others that reached the section to claim in the anderson verdict claim and it wasn't as important in the pi stage for this is on the merit and we do see really. the we can get bail and if there's a finding of a 14th amendment violation. this is a 14th amendment violation. , we do believe -- >> is at the same remedy if you get the 14th a memo nondiscrimination as he would on
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this particular one? >> i think we can. the question is does it justify equitable relief and i think the facts in this case it does. generally speaking we say it's not just affecting -- >> i guess my question is more discrimination allegations you're stronger than a general than a general allegation on the 14th? >> on the fact that they are both very strong. it goes two different remedies. the intentional discrimination facts here are just hard to dismiss. the district court to not try to do it but they are really stunning. but here here we also see that a decade's worth of voting laws expansions, created a situation where voters that relied heavily on those expansions and the court, the state north carolina takes them away with no good excuse. that does not support with the states obligation under the 14th amendment. very briefly on her on the 26th amendment claim despite not having much time to discuss them here today we do not waive them. the evidence when viewed as a whole leaves no room for a conclusion other than this, young voters were targeted for exclusion for the political
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process by a number of provisions that were applicable only to them. they were targeted for exclusion because of the way they were voting because of the power they are exercising. this is not not constitutionally permissible and the court should review send the amendment. >> thank you. >> before you begin maybe you can tell me about what you regard as the timeline for implementing or dismantling each of these. >> judge motz, unfortunately for me mr. peters is going to address that question. >> okay but before he does -- >> he has been with the board of elections for a long time, i think it's very good information to support.
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>> your honor i'm here representing as my partner greg, rich bowers is representing the governor now peters is representing the state board of election. i think the most important point i can make is that we disagree with the plaintiff's position that the judge did not apply the test that this quarter to collating its rejection hearing. we believe he religiously applied that test and then he made extensive findings of facts and concluded that based on these facts the planet have not cared their burden but proving either of the prongs of the section to test that this court laid out. >> for my understanding it would be helpful to be able specifically indicate the claim that you're talking about, you talking section two results intentional discrimination or the amendment or -- i guess in
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terms of the overall view of it and it's a noble review, but in terms of the analysis that we take here and what's been presented on the other side it is helpful at least from my perspective to get your position on those. >> yes or your honor. i am talking about the section to claim at this point. of my presentation. >> are you talking section two results? >> section two results. i may be missing something but i also agree that intent analysis under section two of the of the 14th amendment are the same. if i get to that i will talk about it but i think if you read our brief, there really is no case that is been issued but any court with facts similar to what we have that were found with judge schrader were jurisdiction jurisdiction is the found guilty of intentional discrimination. the court found that the legislature followed its procedures, the court found that the legislature accepted
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amendments fairly significant one related to establishing a benchmark for the number of hours it could be used for early voting. the court found that the general assembly adopted a two-year rollout. with a photo id requirement that had been recommended by the commission that president carter had proposed and the court found that the general mandated a very extensive educational campaign and other findings related to the intent argument weather on the 14th amendment or section two compare this case to the d.c. case right do not think the facts are as favorable to the status they are here in the north carolina case, for example the texas statute charged a fee for the photo idea when it was first enacted. despite having a less favorable record for the state, even the d.c. can't panel which found
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that the was illegal it overruled the lower court's findings that texas had been guilty of intentional discrimination. here we have a more favorable record for the state and we have factual findings, detailed factual findings by the district court, intentional discrimination does not take place. so whether that is under the 14th amendment section two, i think it is clear that the judge claims that they are not erroneous. >> even with section 2i get your point i agree, i think there's similarity between section two and intentional discrimination there, in terms of intentional discrimination, there are some facts here that apparently some comment in terms of the timing of the enactment of the expanded deal at the same data shall be case came down in terms of some of the previous to that in terms
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of evidence that was presented and why it was presented for purposes of intentional discrimination. >> again your honor my first reaction is the district court reviewed and analyzed those facts and did not find them persuasive. as a matter of factual findings on intentional discrimination. i think think the court may be referring to the statement by one legislator, no doubt a significant one, senators were he made the comment about now we can go forward with his full deal. i would refer you first to the d.c. court when they go into detail same reliant upon upon the statement of one senator to find intentional discrimination by nintendo general assembly is a very slim read. however, if the senator had good
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counsel, why wouldn't it be prudent to wait to see what the supreme court was going to do with the shelby county case and before you decide how you move forward with legislation. one thing i . out out is a must all the provisions that have been challenged in this case have been filed previously. it was was not like they just dreamed them up. after shelby county was issued. >> let me ask you a question. this is where it gets muddled. your dealing with the racial case certainly politics -- and intentional discrimination case do you maintain an entity or state can use race as a basis for effectuating the part a single? that is to increase the representation of one or the other and race being the basis of it knowing that all minority group boards assert where it happens to suppress that will
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result in a partisan advantage and if the partisan advantage is the basis for doing it, not not the race, is that legitimate? >> your honor, you may be but we hadn't made that argument. the cases you're referring to and you and i've had this discussion recently with other cases, where the court found that the district was not racially gerrymandering. >> that's why brought up the word gerrymandering so we can differentiate what were talking about were talking about intentional discrimination claim, my claim and my question goes to whether you make the argument or not but i think something is clear that the question comes up at least from the plaintiff perspective that race was used here is a basis for suppressing a minority vote that unit would vote heavily in a particular democratic instance. i'm only asking, is that a legitimate basis under analysis
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for intentional discrimination under the 14th amendment or section two? >> your honor my answer is it may be but we have not made that argument. however i want to point out that in this case the plaintiffs have equated quoted the lueck decision and that is justice kennedy said there's a troubling mix between race and politics. lueck was a relation case because that opinion was made advocate -- >> i want to have a question. you do make the argument, i'm nothing you make the argument i'm saying if the plaintiff makes an allegation that race was used in this instance as a basis for to effectuate a partisan goal, what is your argument to that? what is your statement to that? this is not your case that you're defending i'm asking what your defending west mark. >> the evidence did not show that that happened in the
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district court did not find that that happened. >> the go something like this. undermining the program progress of a racial group that is been said to significantly voted related discrimination and that would be increasingly politically active bears warrant -- >> yes ron i'm aware of that language pray but that language was loose. it was brought up in the context of a claim where there is injury to the plaintiff's because the plaintiffs had met the jingles preconditions, they have assumed they were compact, minority population sufficient to be a majority in a single-member district and they cannot elect candidates of choice without, because of racially voting. that that language is just quoted would not of been relevant if there with the -- that's for
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that comment came from. >> what is the point that you're making in regards to both the solution. i'm just trying to understand it because maybe you can help me with it but i thought i understand his daughter section two. >> yes but it goes under with there's been an injury. >> is the same statutory provision. >> in the case where the statement was made the plaintiff was saying that it was injured. here there is no showing of injury. this goes back to the section two result test that this court adopted where the first prong was a direct that judge sure to had to decide if the law imposes a discriminatory burden and members of the class have less opportunity the members of the political process with candidates of their choice. so if you read the briefs that the other side has filed they
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drop their citations your test the phrase less opportunity and other members to participate in the political process. so that was the key inquiry. you don't get to the jingles factors as we talk about the societal conditions of your test until the plaintiff proves the first part of your test. . .

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