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somebody who has fought hard against nafta are the most recent transpacific partnership. he would've been been a fantastic leader for the country. win and democracy for america we supported bernie sanders and worked hard to have him win. we believed he would win the general election because he understood the problems america basis. i hope moving ahead the democratic party recognizes that bernie sanders is right that's why he was able to mobilize so many people. over the to why some people didn't show up like millennial's working-class people, here a lot of talk about working-class whites and a lot didn't show up
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either. the reason is because we were not fighting for them. bernie sanders would've done that. i agree with the caller the same bernie sanders was a fantastic choice and the sox that he wasn't the one that wass our nominee. >> okay caller from columbus georgia. you are on. >> reporter: good morning. >> caller: people forget about our great general president eisenhower said be careful and don't let the military industrial complex take over the country. i think that's what we are seeing is the government by the corporation instead of the government by the people. maybe donald trump might be the hope that we will get back to government by the people. in his campaign he decided that people should be running thee country that the corporations,
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not the people who buy ties from china or whatever.he w he has that. but the thing about it, at least cc the reality of the people hosing their government to thehe corporations onto the wall. street people like that. >> host: let's let charles respond to that. >> guest: is wonderful thatlivet donald trump saw that and understood it. the problem is he lived it.in what we have seen since he's been elected since he's about to become president-elect after the electoral college votes is that instead of draining the swamp is he selling it. he is adding more corporate lobbyists, he's at it wall street bankers, he's added the kind of people that he ran against his transition to his
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administration the kind of people he's choosing to be his right hand, his counsel, the people who will implement his policies. unfortunately they don't match his campaign rhetoric. i would encourage anyone watching the show who thinks donald trump is going to follow through on his promises of draining the swamp to please read the paper and watch what's happening. that's not what's happening. we are getting an extra level of corporate control and tour government. were getting anganan g commander-in-chiefander- who vey likely is going to continue and increase the power of corporations and the government not restrain them and not bring them in. that's what we see in the transition. i fear that's what we see throughout the next several years. >> host: charles, thank you for joining us today. >> thank you for having me. >> c-span's washington journal, live every day with news and policy issues that impact you. coming up saturday morning,
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timothy on the top 14 obama administration regulations that president-elect trump could undo. then we'll look at some of the challenges facing president-elect trumps administration. with west wing reports founder and bureau chief. he will look at the president-elect selection of key members resisting. as well as how he will manage his expectations. and richard paynter joins us from minneapolis to talk about the various conflicts of interest in terms of the president-elect business dealings. particularly rolls for his children. see spence "washington journal", live 7:00 a.m. eastern on saturday morning. join the discussion. >> next on c-span two, the supreme court hears oral argument in the case of bank of america versus miami. then a discussion about discussion about judicial nominations in the senate confirmation process. then the house republican plans for the next congress.
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>> a signature futures c-span to book tv is our coverage of book fairs and festivals. this coming weekend book tv will be live from the 33rd annual miami book fair. the coverage begins at 10:00 a.m. eastern. here's some of what you will see. the book review. the book review editor pamela paul on by the book. writers and literature in the literary life from the new york times book review. the washington post and the book they can't kill us all, ferguson, baltimore and a new era in america's racial justice movement. former democratic presidential candidate, bernie sanders takes your phone calls and talks about his new book. sunday gets underway at 10:30 a.m. eastern features fox news horse and former white house press secretary dana perino with her book, let me tell you about jasper. how my best friend became america's dog. susan flutie in her book, on the
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book -- and cofounder of the miami book fair and owner of the books and books bookstore, mitchell kaplan. live coverage saturday at 10:00 a.m. eastern and sunday at 10:30 a.m. eastern. go to book to booktv.org for the we can schedule. with donald trump elected as the next u.s. president milani a trumpet begins our nation second born first lady since louisa kaplan adams. here about the influence of america's presidential spouses from c spans a book, first ladies. it's a look at the personal lives and influence of every presidential spouse in american history. it's a companion to see spence tv series and features interviews with 54 of the nations leading first lady historians. biographies of of first ladies and archival photos. first ladies published by public
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affairs is available where you buy books. now available in paperback c-span, where history unfolds daily. the 1979 c-span was created as a public service by america's cable television company. it is brought to today by your cable or satellite provider. >> the supreme court recently heard oral argument into cases related to the fair housing act. the court will decide whether the city of miami can see bank of america and wells fargo for discriminatory mortgage lending for african-american and hispanic homebuyers. a lower court ruled that miami could sue the banks under the fha. here's the supreme court oral argument beginning with bank of america's attorney. >> will hear arguments firstst>> this morning in case 151111.
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bank of america corporation versus city of miami in the consolidated case. >> thank you chief justice. the question this case is whether cities consume under one of our nation's most important the very housing act. the answer is yes, sometimes and i mean three things. first, the answer cannot be yes always because that would eviscerate two key doctrines of the court second, the answer cannot be known never because cities can identify within the zone of interest such as expenditures to combat particular racial misconduct. and third, this lawsuit deals both with the interest and proximate cause because the injury it seeks to remedy are on relatable because that injury
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several steps removed from any alleged acts of petitions. if i could start. this court. >> could you please tell us, you said there are two cities can sue under the fha but not in the scenario. >> under what circumstance could a city sue? >> our position is to preserve the loss just where they're at and identify two places where they consume. one is like a heathen slick situation where city like the ngo and havens is combating discrete instances of discrimination by defendant in outweigh line things. if you took the allegations in this complaint and made them out to be that the banks were
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engaged in discriminatory loans in the city had to basically expend funds to test that out and enforce the statute that is very much like the one-to-one relationship that was issued. ever proximate cause. >> i'm sorry the testers were'm not city employers. they were private organization employees who job it was to do this. so what are you attributing the testers work to the city directly. >> because of the complaint appendix page 20 they complaint asked for the city'sex expenditures to combat identify specific things including testers another. >> why is this different than the other allegations and havens that have to do with lost revenues, with lost tax base which the court cited as well. here they are direct expenditures in terms of increased monitoring of the area by police and other services are
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the city expenditures. >> with respect to think that's -- but our condition is that to the extent the city can put a complaint and this goes back to the question, the second second bucket which the city can serve as the gladstone in which there's a segregation claim that is being advanced. with the racial - make these realtors were taking african-americans out of the village that's an antidiscrimination harm to the village itself. so for interest purposes they don't talk about proximate cause there's absolutely nothing wrong with that. that that is the city. >> i'm sorry you're thinking that if banks are forcing people out of the neighborhood that's not discrimination? >> i'm saying to the extent to d which this segregation
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absolutely it is and that's what gladstone recognizes. he works what it doesn't recognize. something like this complaint which is not the city's anti-discrimination interest, rather they they are borrowing someone else's interest, namely discriminatory loans that happen. our position is the direct victim consume for that. but so too can the justice department and hud because that's what the congressman did to have a standing. what they're saying this we are downstream buyer tax revenues and things like that.that >> that looks very much like thp shareholder in thompson that this shareholder was not identifying anry, they w antidiscrimination they wered identified in economic injury and cutting and pasting. >> they were suing for diminished property values at which resulted in loss of revenue.
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that was so these two cases seem the same to me. the bottom line is taxes depleted the properties and went down in value. >> i think that's not totally correct. number one coming gladstone the injury itself to the village was an antidiscrimination village, that the first part of gladstone on page of 110 of the opinion. here they have not identified the antidiscrimination harm to the city of miami. the identified economic harm. that's why this case is not within the zone of interest but the one there is. think of it this way. scanner two stars. one is the thompson shareholder, the shareholder with an economic injury by an underline active discrimination on the front-end by someone like the ceo who was fired for race discrimination.
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the supreme court said that open the door towards too many. >> that was a hypothetical court brought up by its own -- i'm surprised he put so much weight on thompson. if that was the kate it with upheld. >> i think are position is consistent with thompson. was certainly something justin's kennedy did and then picked up p by a briar. but the language talks about shareholder and it's not just thompson. it something much the same about landlords and utility companies. if you accept their interpretation you're opening the door not just to the city but to anyone else who can borrow someone else's antidiscrimination interest, cut and paste it. >> is your concession yoursion,o formulation that the city consume sometimes i think in the city might be in the same
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position as home was in the havens case? >> there's two different brackets yes the city is like home, the ngo, they, they are identifying specific concrete interest and expenditures they have to outlay to combat the defendants racial misconduct. to the extent that the city wants to do that that's fine. there's a second category. >> are you saying and i don't want to foreclose or prevent you from finishing. icing icing the city is limited to the damagesnt that it can recover? >> on that theory and that bucket yes. the second bucket. >> that the cost that they incur. >> just as it is with the ngo. now if you're troubled that by that i . out the second thing is the gladstone segregation
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category.n in that circumstance the city can recover for the approximate cause they can recover from the harms and making the integrated neighborhood become segregated, however marginally marginally that maybe that is something that can recover for as well as the injunctive. >> would that be at a police force or something like that? >> nine think it would again run into proximate cause problems down the road. there are many steps of causality. >> could the city recover for general damages of having segregated community as a resuld of the defendant's actions? >> i think anything they can directly outlay that may be hard to identify. normally normally this is done on the injunctive side. i think what they wanted to is to bring it to the justice department and had to bring these cases.
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>> your concession runs into the same problem as your main argument. if the city can recover for having a more segregated environment that seemed to be measured by many things including people not going to one is visited as much. how would she measure the damages if the harm is having a more segregated city. >> i don't know if it runs into the same thing. i'm making an argument about this court's precedent starting with 1990 decision that showed the city has to identify the injury. heri the the city has to identify an antidiscrimination interest they have suffered. they can't cut-and-paste and borrow someone else's. to the extent were talking aboua the tax space and so on, that is not an antidiscrimination injury until the way to reconcile. >> that suggests that when congress passed the fha it was looking only at individual acts of discrimination to particular persons. but the fha is a very peculiar
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and distinctive kind of administrative antidiscrimination statute which really is focusing on community harms. we talked about this aa lot in the texas housing case ar couple years ago. it's not just individuals who are harmed. c it is communities.re the c that is the basic idea of the statute, why congress passed it. here the cities are standing up and saying every time you do this redlining and this reverse redline essentially community is becoming related. who better than the city to recognize that interest and to assert it. >> we recognize that is something that's an issue in one of the goals of the fair housing act. think how congress dealt with that is not by saying cities are empowered in the standing that's what they give the justice department and hud and itd loca congressman state and local
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enforcements of housing discrimination to deal with those types of community center. problems. but here they're not using that. they're coming in and saying we are a person aggrieved. and a statute whose chapter has been -- >> but a lower person agrees given the congresses purposes in the act because they are saying as you did this redlining, as as you did this reverse redlining, our community is the thing that makes us a city which is becoming more and more blighted. that's what were trying to recover for.r. the cost of responding to the, the cost of not having revenues in order to carry out our services for that community and others. >> this is their own interests in maintaining their communities free of the kind of racial discrimination that the act says
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causes neighborhood blight. >> if the complaint were written to say that was about segregation causing blight we p would have no problem with it which is what i was saying to justice ginsburg read the city would fall within that zone of interest. and that is what the current commission report which you are referring to says switches the lightest cause not just on its own but with the result of segregation. references to blight follow from segregation. >> how far out would damages extent in the hypothesis you just gave. >> so for interest i think i don't think it matters that is to the extent that the city can put the plank complaints the segregation harm even if it is downstream that it's within the zone of interest. now the approximate cause. >> i don't understand why this is in the segregation harm. here the city is saying you'veci
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done this redline in this is not that it just causes the various foreclosures over the city, it is causing foreclosures in particular concentrated areas and it's a doing because of racial segregation.. at the same time it's preventing that wreck shows segregation from being lifted because those communities are becoming more more blighted unless unless capable of becoming integrated communities. everything about this complaint is about racial segregation. >> i would encourage you to look back at what you said and then read it against their complaint. none of that is in the complaint. >> so do you think everything i just said if there complaint was written like that that they could maintain. >> they could maintain it in the measure of damages would not be the measure of damages which they're seeking seeking which is recovery for the 2008 foreclosure crisis to the tune of billions of dollars nationwide.
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it would be at most with proximate cause the delta between a segregated community that now exists as a result of the defendants particularsure conduct and an integrated community that would've existed otherwise. thus the only measure of damages. >> how do you measure that? >> i'm not sure. ultimately it may fail on approximate cause but that's what we dealt with the zone of interest and with respect to zone of interest i think that complaint the one that justice kagan read with satisfy the zone of interest and allow a city to come in and get injunctive relief to preserve the community centered concepts you're talking about. the question is, would they be able to recover damages for that including damages to their tax base. it's certainly true that gladstone has the line at the end of page 110 which talks about tax revenues.3 standi
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the next line and that's enough for article three standing. i don't think the court has ever decided the question of whether approximate cause principles allow us segregation lawsuits. >> i take it from everything he> said that -- would flunk at the approximate cost stage. >> i do think that's right. that that is there be so many steps involved in you can take a look at the complaint and at the brief page 30 you see all of the steps required before the city is injured. you have to have discriminatory loans and they have to to defaults. the defaults lead to foreclosures, the foreclosures lead to increase in vacancies. and then -- >> i think approximate cause and correct me if i'm wrong as a question of liability not
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damages. >> correct. cau i think this court has thought about it that way. you could look for example and what this court has said is you look to the underlying damages that are being to understood. as the complaint within the standard proximate causeseac principles and if you accept d their theory, you're doing something i don't know the court has ever done before and that's to allow a long chain ofof causation. to the tune of billions of dollars to recover.alking a >> could i ask a separate question. we've been talking about zone defense. about whether the zone ofyou hae interest, could you have these three cases prior to this 1980 reenactments of the old 1960 language. in each of these three cases the
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court very specifically says this language stretches the limits of article three.ing the so congress is amending the statue in 1988 against that backdrop. why shouldn't we understand thas that the language means it stretches to the limits of article three. >> for three reasons. the first is that it applies to the holdings of the court. and i don't world the court for thompson many of us are hearing in thompson the court unanimously. >> is actually anticipating -- i think the court went through and they heard the first of theti argument of the time which wasd that this was the binding
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holdings and what this court said. >> i don't understand. we can argue where these holdings are not and there's arguments on both sides. but here i am on congress. suppose you are an advisor to the congressman are he said i dt really like this idea of going to the limits of article three, think we should limited and you say no worries just use the samt language and you said use the same language that has been inconsistently understood to go to the limits of article three and you say don't worry it's dichter. and he says okay i feel relieved. we can now use this language. i mean wouldn't you be -- well i think if i did what you said which is not actually follow with this course required which is an express negation of the zone of interest task notdo borrowing from some implicit doctrine. the high watermark is only a guide toward the congressman in starting in 1993 and even before
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that in the gc case perhaps even before that this court has said you need an express negation by congress in order taker gate the zone of interest. that is not what happened here. >> the weakest test -- it was understood to expand standing over what it had been before. so the zone of interest test it was facilitating the ability. >> certainly but by the time which was the case of a limited standing and that was before 1988, so i think you have that problem. you'd also be fired for another reason in your hypothetical which is theyo congressional report you wroteai says the staffers says there's only two things that you are trying to codify. one was the testers have standing and the
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other is that administrative and judicial standing applies the same standard. those are the only two things in the house report. >> i don't read it that way. itf does refer refer to a couple of particular aspects of both cases but it seems to mean to cut against you because it makes clear that congress knew about those cases and those are the cases which said standing stretches to the limit ofg article 3. if you really look at the legislative history of the sect it's pretty clear that congress is asked in 1988 if it took off the shelf for bill that was discussed in 1980. in that bill there was discussion about whether standing should go to the limits of article three and congress was thinking of changing that language andrew days, the assistant attorney general and the hud secretary both come in and tell congress if you change that language it's a problem because then you are cutting back on standing and congress
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decided not to change theo go t language because it wanted, asld juice said in the hud secretaryt said to go to the limits of article three. >> i'll answer that a minute. justice kagan even if all that is true i think this court has express for especially this reasons that you don't go to three days. >> this is not an expressed limitation which means we are doing away or keeping the zone of interest.rule. because the markets establish that rule. there is no explicit statement. what the court did was look at this endangered species statue. and decide that any person and decided it did away with the zone of interest. here we have a congress of 1980 taking the word agreed which was in the state title and many
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other statutes but undefined. and what it did was take the definition, looked at by prior regulations, examined by the court in its three cases establishing article three standing and put in a definition that is very different than the normal definition. >> why is that. >> is not very different it is a plain jane definition. it doesn't look like we're talking about the endangered species act which allows any person and it was their interpretation i think for the first time in the federal there is no damages statute that allows anybody to go the way their interpretation would. on approximate cause the mainist point is that there is a general rule and there's an independent
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rule there's a general rule that says liabilities cut off after the first. if you adopt this theory of the complaint you're accepting six step liability in the way way this court has never done before. at most this court elects said you could expand a little bit beyond the first step for a 1 - 1 relationship but hear this complaint is seeking damages for the foreclosure crisis of 2008. something that is way beyond anything the court has pushed on. >> when you say that when you said to me the complaint that i wrote would have been covered by the act do you think it would also fall within proximate cause principles? >> i think it would have to satisfy the direct requirement to the extent that the city could identify segregation harms directly. so it could be university when it they lose diversity or something like that. some direct quote from one to one relationship.tely every
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and of course congress could write a statute that believers the approximate cause doctrine. but they have not done that. they're looking at the plain jane version of damages and what they are seeking here with thiss creative complaint which the fair housing act has been around since before i was born. only until a couple years ago have we seen a complaint that looks anything like this. they're seeking to recover the foreclosure crisis of 2008. that can't possibly satisfy r proximate cause principle. starting in 1918 and going going all the way to the holmes opinion of this court moree hols recently. >> there's one understanding when i started reading the briefs i was confused. one understanding is that usually it's about foreseeability and only foreseeability. there are definitely places where we have said there's additional directnessrectness requirement but only in discret
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areas. i sort of come back to this notion that i think what our president suggest is it's a little bit statute by statute as to whether a proximate cause is a foreseeability inquiry and only the whether it has additional components. >> i'll answer that with the balance of my time. i think this court has said there must be a directd the relationship between thethey b misconduct. i think they both do that. that's the general rule not the outlier. >> so what we do with all the statements and i'm quoting, there is is little significance and the difference between directed and indirect injuries for purposes of filing suit under the fha.he legis while members of minority groups were damaged the most from discrimination the proponents of the legislation emphasized that those were not the direct objects of discrimination had an
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interest in ensuring fair housing. >> so as we have said the difference between direct and indirect has no meaning in the statute. the foreseeability always has meaning. >> they never said anything about a proximate cause. cause. that's a completely different inquiry. >> think you counsel.. >> mr. peck. >> mr. chief justice.t the city of miami brought these cases with injunctive relief because the banks practice of providing minority borrowers with more expensive and riskier loans than the qualified for or that nonminority borrowers receive.nminorit actually frustrated and counteracted the city's efforts on fair housing.
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and cause the city to lose the benefits of social professional and business opportunity that come with an integrated community free from housing discrimination. you heard my friend described as two buckets. if the complaint were mixed up clearly then we do have standing there with it within the zone of interest. we thought the original complaint was filed made this apparent. the 11th circuit agreed with us. but when the district court dismissed us with prejudice on the original complaint we made a motion for consideration to make more explicit what we thought was implicit in this complaint. as a result the court denied the opportunity to do that. if you look at the amended complaint the talks about the fact that the city operates a department of economic development which takesmp complaints about fair housing and tries to do the council that
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educates. and it's in charge of all ofht these efforts that we thought were part of our original complaint. at the same time we recognize the injury to the city is one that comes from nondiscrimination principle embodied in the fair housing act. so those two buckets to exist in the complaint and if they don't then they do it if we had the opportunity to amend the complaint to make it more explicit. >> i'm looking at the joint appendix page 186. your opening paragraph we say doa's conduct is harmed, the residents of miami and impaired the long-standing and active commitment to open integrated residential housing. its intended benefit of creating a stable community. and then he go on to the specific damages.
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the loss of tax revenues and increased expensive. it's those types of allegations that you're pointing to? >> a point to those on page 232 and two and 233 which describe the operation of the department and economic developer. as a result. >> this pretty much tracks evening gladstone. >> it does. as a result, we think regardless of whether you take the article three approach to standing in this case or take a more narrow formulation, depends on the fact that we are tied to violations of the act. the city of miami has standing. i don't understand either bank to disagree with us on that as long as we make those. it seems odd that would be
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prevented from making those pleadings as explicitly asas possible.eems t >> to think you are a direct victim of discrimination because it seems to me the damages you seek are not going to be paid ta those who are the direct victims of discrimination. >> we are a direct victim. this court has repeatedly in all three cases dealing recognize directed indirect damages. that plaintiffs indirectly harmed are also harmed. we are seen our own injuries. we are -- your injuries are der derivative of the injury to the homeowners who had the subprime mortgages and suffered foreclosure. you don't start with you. i understand your argument that your downline. i don't see how you consider loss
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of how you can see her loss of property taxes is a direct injury. >> overseen his injury here is c the injury that has those businesses and opportunities. >> wears the limit to that? u.s. u.s. for property taxes but presumably you suffer loss of sales taxes because of the blight in the community. it's less attractive to tourists or you lose tourist revenues. would you be able to recover loss and tourist revenues?ot c >> we do not think we can. >> it's not as attractive as city people will go somewhere else and so on the city's area in a unique position. there are zoning laws. the issue of property values and even property tax or to hold. there part and parcel of thehat issue. the fact is the city has a firm obligation that require them to look out for fair housing.
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miami and other cities get block grants.what t >> so can you articulate in the sentence the difference of what you don't get taxes you get from tourists. you do get property taxes. so what is it that cuts off the chain? >> we believe it has to be tied specifically to the property. >> how are the cost of increased services.ures becau >> were not looking at the increased services of police but our department would have to look at unsafe structures and final structures because they been abandoned after foreclosure. our department would have to remediate neighborhoods so this is the other end of having blocked against a person for fair housing. it's the other end when you try to remediate the neighborhood make it whole again.e those efforts are the ones we
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seek damages for.di >> in gladstone this court recognize that a city that is strictly injured in its property values and the taxes that go to services. so that is is where we see the direct connection. >> we see that gladstone neveroo got to a proximate cause. they just decided whether there was. >> the court did not describe proximate cause. but it's hard to read that sentence that anything but referring to it. it's a direct injury that flows from thein discriminatory condu. >> one thing is that they were seeking billions, in our complaint we mention the fact that we have lost millions.
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we note that before the city of miami but it's case the city fraud cases and settle cases with identical types of allegations that left them with 10 million each. when i talking about huge sums of money.io >> will the question presented today if you prevailed they would not have to give up her percentage on the possibility that they might not be stating the claim. >> it's possible. at that point i don't believeisu anybody believed it was a separate issue but the cities had survived multiple motions to dismiss that went to the zone of interest. that is what caused other cities i was a possibility. >> which you go back to the question the chief started which is, how do you define the limits
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of your foreseeability test? clearly less tourism, less sales tax, less of a lot of other things can be potentially for seeable but what you're suggesting is they're not is recoverable. is it because they're not for ik seeable or is it because there not measurable. >> i think they're difficult to measure. they may be for seeable but i think there's also potential for superseding events that cut off the change. >> do you want us to use the phrase, and concept a proximate cause in determining how far damages expend? >> i think in westmark where do i turn next. >> and lexmark the guidance this court gave was that damages
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incurred to the very conduct of statute prohibits. we think that what we have done is proposed. >> this statute doesn't doesn't prohibit decreasing property tax. >> but its does prohibit w discrimination in housing. this is is one of the damages we suffer that is directly the result of these kind of hormones. therefore we have tried to look at our damages with respect to the specific properties in the damages they generate rectallyop to the city. >> all proximate cause require sufficient connection betweenpr the misconduct and the result. it includes any injury they seek to protect against. we have injuries that the statute seeks to protect against, my friend, my friend doesn't disagree those injuries are protected by the statute. and certainly those injuries are in
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those that the courts recognize. the question then becomes what's appropriate damages. we think we're proposed damages that are tightly connected to the actual injury suffered. >> i'm not saying we should or shouldn't but i'm center we have to decide the case. >> you do not need to. in fact, one of the things the 11th circuit noted is that anytime between when we're briefed or when we argued the case this court came down with the decision of inclusivee communities. i mentioned there is a proximate cause standard that needs to be incorporated. and then they said we are not going to delve into what that exactly us and we went to the district court for that decision. we think that can play out in further litigation of the
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lawsuit. >> so in included language along the lines of don't worry it's not going to be very much based on the experience in baltimore and memphis. >> i just think the fact that our opponents were talking about billions of dollars and the 2008 projects which i want to deny needed a response. and with respect to the financial crisis. if the financial crisis what is the purpose of the lawsuit that the statute of of two years would've ended the lawsuit. instead what we found what the 11th circuit acknowledges the kind alone, the kind that are being offered are taking different forms but the underlying practice remains the
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same, minority borrowers are getting more expensive andrisk riskier loans that are quicker to foreclosure and that foreclosure may be seven times as frequently. >> is there a difference, the complaint was not set to me between subprime loans and predatory loans? >> predatory loans are used as a generic term to talk about taking advantage of a borrower. subprime loans are those that have interest rates so low that it looks like it's a wonderful deal until you look at some of the presumed -- >> aren't all subprime loans properly categories is predatory? >> i believe the subprime loan b that killed the financial crisi are considered -- suppose you have a business that is losing money and employees because the neighborhood is deteriorating,ya
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do they have a stronger or weaker claim than you do. they've lost profits from their business because the neighborhood is been debilitated. >> i think think have a weaker claim. we have a claim tied to the fact. >> their property owners. >> they are but they're also commercial property owners.owne. there's no damage to personal property but here what were seeing is if i could step back from own the endangered species, they recognize that article three standing applies to the endangered species act but you still have to make a claim that spaced on an interest in theti preservation of animals, you can't make a claim based on discrimination that apply to housing discrimination. there is some generalize owner of interest. here i say the city has a special interest in fair housing
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and an integrated community that the fha wants to renovate. the employee does not. the local dry cleaner not. now they have a relationship tos the fact that this is their community, their neighborhood which they do and they decide how the property will be used and they provide services to everyone at the residence. >> does the business owner have an interest in running his business and an integrated, vibrant neighborhood just as the city would have a less strict interest in having it preserved? >> i think it's very difficult to claim the kind of damage they've claim. allow one difference between the fha and title vii for example is that we recognize the tracks.
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we allowed neighbors, testers, nonprofit organizations and developers and real estate brokers all to sue to vindicate that interest. we don't allow the equivalent of a neighbor, coworker to bring an action for discrimination upon one of your colleagues. we don't allow others within that kind of round to bring the actions. that's part of the problem that a business that makes the claim might have. >> in the end what i'm suggesting is there direct injuries by virtue of these what my friend described as buckets, a direct injury injury to the city in its efforts to secure fair housing by draining the resources and those resources are recoverable and that indeed is any kind of proximate causese as well as an injury to that interest in integrative
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community that allows business opportunities and social opportunities to flow. that this recognized in the gladstone case. and suggest even my friend in my brief the appropriate damages in such an instance is the loss of property values and property taxes which are part and parcel of this mortgage loan industry. so were not asking for somethins that's different and out of then realm, that's away from what this is, but something that's integral to our prospect. in the end what we suggest is the city of miami is not marginally involved in fair housing come is not working inconsistently in their at whatever zone of interest that applies because it's not a very demanding task. there's a reason for that. that's because we are in
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aggrieved in every sense of thee word part of the discrimination. at the same time it has to essentially flow from the fact that there was some violation of the act which is insufficient. we think our injuries direct but even if it were as my friend suggest, those minute steps are all true of the individual borrower who has to take out a discriminatory loan, who has to default who has to arrive in foreclosure, who has to find the active abandon and then he can bring his lawsuits. because all those different steps are -- the financial state of the economy, the nature of his job situation, his family situation they all have effects on that. we recognize this is proximate.
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>> for those reasons i suggest this court ought to affirm the 11th circuit. >> thank you counsel. >> mr. chief justice, and gladstone the court concluded that a municipality was injured if discriminatory housing practices cause a reduction in in property values and diminished tax revenues.old th congress recount if i that with the amendments to the fair housing act and the court should hold the same injury is still today whether under an article three rationale or broad zone of interest rational.t and pa >> if i could turn to some of the points i came up today, my friend on the other side sayse you cannot cut-and-paste injury
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from one plaintiff to one victim of discrimination to another. that's an argument that gladstone rejected. in footnote nine the court saide what matters here, this is the breath of the trilogy between 1972 in 1982 is that somebody has had their legal rights violated by discriminatory housing practices. it doesn't have to be the plaintiff's legal rights. the plaintiff has to be injured by that violation but it doesn't have to be there rights violated and that's what we think about the typical definition that the congress put back. >> what you do then with the restaurant to the drycleaner the laundry or whatever that wantsr to sue for somebody else's discrimination? >> i agree with my friends on both sides that that will come from the proximate cause analysis. we don't agree that there'sta
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still that implicit in the statute. although gladstone didn't address it in those terms it's important and significant that the court in the city isin directly injured by the decrease in property values. we think the ultimate test the court has repeatedly recognize that the proximate cause is a statue by statute inquiry that depends on the individual statutes. but the test is if there is a close connection to the conduct the statute prohibits. what it what it prohibits is discriminatory housing practices. >> cut his proximate cause help, you can have a drycleaner were a magazine that writes aboutwa successes and integration. >> we could be absolutely clear 15 bishops testified. >> i think what were saying.
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>> they haven't even argued that. >> to the extent they can get themselves into the home, then maybe they can say that they have specific -- with fighting discrimination. know you heard, the question before and it still is if we get into admit we may not need to. if we did it would be someone in alaska who writes magazine articles about successes andon'v integration's gonna be racked because they don't have immigration is a prime example. it's absolutely clear. >> and you bring this lawsuit. >> we think that's a fair deal. >> not because of causation, and made hypothetical where we have proved its cost.dete >> but a proximate cause is always about determining that something that is cause is still too far away either in terms ofd
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foreseeability or something else. so a proximate cause by definition is carving out something that otherwise would because by an it would be doing anything different inrent traceability analysis. here we think the reason it was sufficiently closely connected to the conduct that it prohibits said it prohibits discriminatory houses. that includes things like the terms and condition of the sale and rental property, things things about the real estate related transaction. things about blockbusting which was prohibited in blockbusting was a practice in which somebody would go into neighborhood and induce artificially low priced panic selling bison there my nordics coming in. that had an effect on property prices. >> how do we write it? let's see the corner grocery who was running accounts was a gardener who every week clean
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the property and i doubt someone who is in foreclosure could afford a gardener but let's assume that's a possibility. why, how do we write that the city has standing and its injuries are proximately caused with those people. >> company shareholder, how dost we sick? >> the link we see used to property values and messy injury the court already recognizing gladstone. it's a question of congressional intent. you're trying to figure out what congress intended. this court already recognized that a city was directly injured by decreased property values. same was true of the neighbors and gladstone. the neighbors who had their property values diminish were able to recover. the corner store to the extent of the property diminishes one like one of the neighbors.ho we talk about lost profits or
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the utility companies and they lost a customer those areditionl further field and a proximate cause is traditionally done. >> could you give us more concrete answers. the utility company said its further field, is it covered or not? >> we think it's not. what the court recognized and gladstone is something congress is taking account of. the effect on property values is closely tied to discriminatory housing practices. congress was entitled to think that that relationship would endure.le that >> how about real estate brokers whose commission is based on the value of the property? >> yes. real estate brokers we discussed in our brief those of the types of people who have an interest in the transaction, even an economic interest they can recover. i understand my friends on the upside to dispute that if they have a transaction that fails tl go through because of this
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because of racial discrimination vacancy. we think it's it's important for the court to remember you don't just -- their sin this is our community and our commissions will be lower across the board. >> . . don't get it. >> if they were just generically saying business is down. that might be harder where developers, real estate agents have talked about specific transactions that they can say were caused by -- by discriminatory housing practices. we do think it's important for the court to recall that those cases involve plaintiffs who don't necessarily have a quote, unquote desegregation interest as my friend on the other side puts it. they are injured in economic interests and as the court pointed out inclusive communities, real estate developer, we don't require that they add on that there's something like the nonprofit in havens where in addition to wanting to make money off of
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developing property, they also have an interest in desegregation. >> please. >> your answer, i think, to the questions is that it's limited to those cognizabel suits contemplated by the statute and you see by having to do with the possession or value of the property? >> we think the harms directly from changes in property value were ones that congress contemplated both in 1968 and 1988 after the court had enumerated that as a particular type of harm at issue here. we don't think that the city should have to establish that there's been a change in racial composition in the neighborhood because the fair housing act is intended to cover -- intend today prohibit discriminatory
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practices. >> the city can sue based on isolated instances discrimination? it affects the community as a whole and the city has an interest in ensuring the stability of the communities not that the city could enforce particular instances of the housing discrimination. >> i think it's both. i think that they do have the community representing interest but i also think that to the extent that they can say we suffer a harm from this particular transaction, let's assume it's just one particular apartment complex or something. >> one particular home. >> i suspect that that's one where there wouldn't be that much in it to have the city bring the suit instead of the individual owner. >> i don't know if there's much in it. can the city bring it or no?
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>> yes, whenever there's a decline in property value on primary victim, they suffer corresponding decline in tax revenue. >> the city can bring an action to the sort we are talking about here in the case of one subprime mortgage that results in foreclosure? >> if they can say that that was caused by discriminatory housing practices an it injured them, yes, that's just like the residents in city in gladstone, they are able to say we are injured by this. >> thank you, counsel. mr. kaytal you have four minutes. >> four points, your honor. we agree and believe page 33 says identify interest but impact on segregation in order to survive. they haven't done that. they haven't told you that segregation is increasing or decreasing, second, the damages
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here they seek are way, way broader than what they paid out to be. the bank of america petition page 34, cites one of the complaints by same counsel against counties seeking hundreds of millions of dollars, there are 19,300 cities in america. if they adopt their theory you would be allowing all of them to bring complaints. if you accept their interpretation you'd be opening the door. proximate cause is somehow a limitation on that. their own proximate cause test eliminates the directness requirement. i think it'll be hard and that's why i don't think he had an answer on the magazine or things like that and when justice is sotomayor you asked him about gardener, that cannot be a theory on the court on proximate cause principles for many
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reasons. it's not brief to argue but second the language that's he's read to go you is at the end of gladstone saying that if you have reduction in property values it would reduce tax base. you have five steps as brief explains before you even get to the reduction in property values. each of those are opportunities for intervening causes and all the kinds of things that the court said are the reasons why we cut off liability at the first step. his.other answer was to say that they were concerned with cities, that congressional report says that congress is equally concerned with employers who stufferred from segregated neighborhoods, employees who were fired because the neighborhoods suffered from blight and other things. if you take their standard, look at the congressional report, figure out who is harmed by
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housing discrimination even downstream, you would come to the same conclusion we do, which is this is an unlimited theory of liability that would allow more to sue, utility companies to sue and, justice sotomayor gardeners to sue. if you adopt on zone of interest, their interpretation of aggrieved persons, 36-12 allows persons to intervene as a matter of right in federal litigation. ..
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>> and. >>
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>> greenspan had the unusual upbringing as a single mother as the father left his mother and then a
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distant figure reduces it he would it show up and then did not put that reinforced his tendency to live inside of his head. what. [inaudible conversations] and higher local new here today.titution p
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about creating a bipartisan controversial issues and it has then a tough road for all of us over the past several months but we hope to continue to create this on a continued consensus over the next four years or 80 years and beyond. we are glad to welcome you here today and certainly our panel that would be an interesting discussion. son alanine introduced a reporter for the supreme court of the "new york times"
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>> >> and maybe conduct a post-mortem of the nomination of the chief justice air garland to the supreme court to be one or more nominations but with me to discuss this are two very lively and influential thinkers and writers of president ethics and policies center is a widely read brighter and served in all three branches of
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government and law clerk justice khalifa and the justice legal counsel and general counsel to judiciaryryse a a graduate of harvard college and law school. steve is a law professor trite cow prolifically and contributes about the supreme court and is a graduate of amherst collegeaw and clerked in the ninth circuit in did not know what this is but it is that the constitution center so let's look back at of garland nomination i get a lot ofki females same distills on then-president can do. can he wet. >> no. i think the nomination is
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dead. >> i think there are some legal things between now maybe that will not happen in. >> when the senate will be in recess when obama couldll theoretically make a nomination to the supreme court but relatively none of those will happen. apart from the fact that he could not do a nomination. infin but the supreme court has said they have released 10 days for the power to be available. that is a long-shot possibility quick. >> satisfying end frivolous. >> so let's assume the
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nomination is dead.ation also from president obama as part of constitutional duty is any truth to that wet cement that card -- argumentrejd from both sides of these idol is clearly wrong. from the former obama wide house counsel. of wh and she would have recommended that they have in mind and that applies to all officers the cause of the restriction, and says nothing how we shall exercise its power through
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american history approval range of officers the senate has routinely kill they nomination and to make that argument that is unconstitutional so oho this is not to be taken seriously >> so i agree that you think there is no constitutional obligation grex were about even though lower court appointments? but it has drawn its consent quick. >> yes. f the title of this event is constitutional prerogativega for crisis?cr the answer is yes. [laughter] that there is no question that on the structure of the constitution they have the
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right to a pulled as and hasas done in 25 for 30 percent of all nominations to the supreme court. that's fine. but this is not those. the garland nomination will stand to would've 50 days previously was 125 and by the way brandeis was confirmed. so there is no right on anyone nominee for the uproar assess but there is a more important interest with the supreme court legitimacy. and t with this official mandate. and were the jurisdiction and comes from. into the institution that operates without regard for politics and it shows some
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respect for the responsibility. live the senate basically a hold hostage of the express understanding that even orrin hatch said was about as well qualified but simply because of a politicalag calculation into crystallize the view to have the potential to radically diminish the supreme court.s and to see more of this to come to the point that it would never view that any more prohibit hospital bed by respect for those numbers go down in steve's point isbut f
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that you could be do damage to the court but with those political arguments from the judicial philosophy. i have good great deal of respect for him might have never said a bad word but he is a liberal. is a su that is sufficient ground for the senate republicans to say no. not on my watch. and also encouraging duh democrats to take itom seriously to do the highest duty only those that would construe the constitution.
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and after all was back in 1992 and if that vacancy arose. the only reason had not happened up to now first call is an end situations to make of nominee is the - - nomination as the president to have this conflict between the president and the senate and to have any vacancy rise in the election year. but with foreign very. >> but with that responserth
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and then rewriting history a and abet. and those leaders of of party before he was even nominated they would opposee any nominee just because they didn't want president obama. >> and with that assumption but president obama will not name the conservative to the supreme court. >> exactly. and anthony kennedy was nominated within one year of the election. but to see that and to have 1987 talk about me writing history to talk about that vacancy. >> but the point is just the nomination but that is all
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okay. to suggest it is a race to the bottom. and to deny to the other side of that moderate consensus that institution that is lost at the end of i the process say that they were irresponsible that is not that condoned irresponsible behavior. >> would democrats have done the same thing? >> that is possible and about the reaction to the supreme court vacancy maximizes the ability to turn the core into apolitical institution.
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why is there nine justices? in response to us greatest period in the course history thu with the other bridges. to keep the courts out of reconstruction with that credibility but any mechanism of power. and with support to the supreme court would be employed that everything is okay with the supreme court nomination. >> but to clarify my position is not uh justification but it is important to have in mind but a long-term battle with
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those constitution and on the leftover decades without living constitution. to reflect the politics of the left.out how to that is an independent institution and.s that but conservatives thought about the notion. in then to interpret and that assays substantivehe debate. and with power n citizens
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united on one side so one of two things is true. either legitimacy doesn't have one dominant view of the constitution of different coalitions and therefore not beholden or simply in which case this isn't law as opposed to politics. but i really hope it is the former of the two. the reason why the supreme court decisions that is the least favorite decision of the day, why do follow that? the supreme court is not political. and i get very nervous about the suggestion at the end of the day to hide behind the
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constitution credits the of political end game. >> but in the current reality but on those casesdule t those are all the same coalitions with justice kennedy going back and forth it isn't a very good argument. >> that's right. historic leave the court over time is not in ways other consistent with the american public but then perceive to be aligned with public opinion so the point is simply a done nominee toe the supreme court is simply because the republicans won the senate and a warehouse but that -- the white house
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but that isn't devises a similar power grab as chuck schumer tomorrows says i will not do anything in the senate, as donald trump compromises site guess that is the irresponsible use of power by the senate majority leader. this edition of tolling aa bag is the court. >> but that trump nomination he has released 21 potential nominees and declare it is a statement he will choose from only among that list. should we take can match his words should be characterized those? plaques. >> i don't pretend to know all candidates of the of
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list. for some have not heard of that of some better link should be on molester others m that were. and the strong credentials across the ideological spectrum. antitrust that he will. many of us will help them to do so to look for competent - - confirmation of the of nominee. >> i thought at the time that it was meant to be conservative as those you would want to replace justice scalia on the supreme court. not just those of
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conservative credentials but only senator was that non judge. but to think about the diversity of the supreme court there is very little there are nine state supreme a court justices and go lower state court judge and a law of people did not go is every single sitting justice would. >> if you want diversity are you looking for politicians on the supreme court? with the previous positions don't want them to look political but that is the natural place to look. >> but the market was supreme court justice to have political backgrounds but what did they do when
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they are on the court? but the court is diverse if you look at the election mapectm to see where it comes from. >> all of this sitting supreme court justices exclaiming justice kagan with one exception on the last the there wasn't anybody in those places on the court of appeals for the armed services. that is pretty unsurprising.an as opposed to say that to get those nominees tonight at the confirmation that they expected. >> when do think they will get the nomination or
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confirmation hearing? >> there is no reason to rush. i have been saying for the last nine months there is no crisis on the supreme court. so to rule things out smoother proper and jeff that selection well in an advance with the inauguration that he could name his election tomorrow but to make an nomination but i would guess to have the whole team in place to defend the nominee i would think that would be within the first week.
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but with the hope the nominee would be confirmed quick. >> i think that's right. uh view of the court so what they would do so for example, there are three cases fully briefed and ready to be scheduled for argument that have not been. i wonder why? they are way behind i don't think that is because they're not there. not >> but that is starting to look good to you? >> i have to separate analysis of the supreme court and to rule the federal system is not filled
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>> but i prefer the eight justices as a her -- as opposed to anyone on the list? constitutionally, absolutely not. but the eight person court as an impact. there may be three cases that the court to affirm his argument. but if they would have gone differently with the election and then holding the seat open is that it was closer to the constitutional crisis? >> i don't think it is a significant issue at all. their previous problems said one we have seen to actually resolve for ip the reason we have a supreme court in the
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constitution with the ability to resolve civil rights because she says they have choucroute a review but why haven't they said that? and then to routinely denied the circuit split. >> as opposed to of president and congress? >> so let's assume a conventionally negative requalify candidate that is quite conservative. what type the democratic response to you expect quick. >> it isn't clear but the first scenario is the of hostile l. reactions and they pull out all the stops
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including invoking the filibuster led the seconded equally possible scenariohat that doesn't have the radical shift of justice the aliyah for the next appointment and not stoop to the level of the republicans but maybe they voted against the merits but not to be filibuster but i don't know those are being discussed as we speak and if they have an impact. >> if they would attempt the filibuster? >> they would lead to exactly what they did four years ago with of
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lower-court nominees an executive branch nominees. so what is important to understand what happenedhat happ back then by senator schumer the three years ago with filibuster and efforts by the senate republicans they said no more we will abolish the filibuster and republicans have undertakenmoon with the first launched their campaign against the of lower-court nominees. it ended up not going through 2005 but those filibuster efforts at that time planned parenthood and
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other abortion groups were very concerned that they would not be abolished in the abstract for the supreme court nominees they were worried that might play out in practice to make it easier for the republican president to get of nominee against roe vs. wade. so to get that filibuster in place the thinking was in the midst of battle me can do it but in the spirits of bipartisanship with the supreme court nominees those that made of local statement wit
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or of local statement of hillary clinton i think they will act in kind. >> again with the fight making canadians are is yes. but to talk about the lower court judges as attention was paid to this comedienne vacancy what those federal courts at the end of the second term 38 of those have been classified by the westport not exactly partisan because the pressure they have placed on another dockets. it isn't just about the supreme court with the
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democratically elected president.they c to say it is the ideological opposition. >> with the statistics for the 80 years the president obama and compare them to president bush was almost identical. >> but that is based on case filings nobody ever takes. >> and have been answered your question but what happened frankly he nominated those of the senate democratic candidates
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you can phrase over criticize but. >> then don't want to go through the list to the u.s. senate but i will say briefly that it is very hard to look at those compromise listen you may first think. >> so let's focus on the supreme court. but he said the mistakesay were perceived to be a little lower because broadly speaking is that correct? is there a more nuanced view?ant to
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>> antonia uh nomination that is reasonable. but in terms of whoever it is selected, that is a huge growth to fill that the supreme court has challenging issues nobody could expect anyone to hold the same set of views and justice aliyah of full host of areas of criminal procedure those that may leave the same way and those
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that are of particular concern for the democrats. if they will hold different views but the criminal procedure area has the most room for movement. and during the justice felicia tenure to be the more democratic. >> there are 25 cases where justice scalia is in the majority voting for the defendant. >> and was responsible for that cause so it is possible that that nominee on the list or not could perhaps be more consistently pro-government but i am not
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sure that is the wedge that would fill the next open seats on the court. >> so in that era for those generally conservative or liberal, are their cases on the docket where we might see some movement because we're back in the area? >> the most obvious candidate which is all aboutut the department of education which obviously the new department of education but i do think there are some hot-button issues for those who live in national security like guantanamo to
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put them back on the court its radar. that no other obvious standout examples. >> but the true legend case thae that was not scheduled. >> i am not sure but we will see. last term we had some with immigration with the trump and administration doesn't need to go to court. >> diocese of that will die away. >> but the first amendment challenge? there are versions of that case coming back to the court. >> measure question indicates if there are those in the pipeline they could be very ready to decide the
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case. >> but that last term with justice khalil was the dominant story right knee but also a very surprising leftward movement of justice kennedy for the first timekenned with the affirmative-action program that is the sameom justice that jordan's justice beyer reiteration of a woman's right to choose. perhaps that is a counterexample i say perhaps this is why there will be quite as much blood spilledlood over as the justice scalia seat as the next one but justice kennedy has taken that position a little further to the left and it will take the fifth vote from someone other than kennedy to scaled-back.
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>> i do think you are quite right to listen prize of money to the left move of kennedy.at >> if i was being obnoxious seven say common sense. [laughter] but i don't know. has been my experience as a constitutional law professor and as he said in "casablanca" and he blows with the wind. there's a law going on that lends itself to consistency. but i do wonder if the specter of a trump presidency that he did not think about last term but he does now would further push him and quite frankly chief justice roberts to be especially thoughtful and careful about the questions of discrimination in ways
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that six months ago by not have been. >> but about justice kennedy pests? >> nothing i can say publicly. [laughter] i don't dispute that justice kennedy has moved even further left last year and in recent years but we saw the genesis swayback in 1992 to define the concept of one's own existence with the m mystery of the universe. so flu knows where it might lead? consistently it is a lack of rigor. >> but in some ways it is reactive to the perception there is a law of discussion of why the supreme court was so active to push back
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against the military commissions and then to step back. i don't think is crazy to speculate that by some sense with the separation of powers problems to a the lower-court one wonders if we see a new found separation of powers with a similar coalition to reemerge. >> 88 we have a general consensus the next nomination will not change the world but which ones might those be? >> click at the demographics better now 100 percent 10 reliable but they come from the three oldest justices ginsburg is 83 kennedy is adn justice prior is 78.
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-- justice breyer is 78 and also the senate is 52 republicans 48 democrats and for them to be secure the republican hands afterons 2018, 25 of the 33 seats up for election held by democrats first term or vulnerable. series what might happen this and it could swing dramatically to the democratic hands but to think not of the next two or four years but i think it is a good bet you'll have water to additional vacancies during that period. >> is of vacancy it is an apparel or monetarily is
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justice thomas. i think it is the same like justice stevens stepping down where justice thomas may be perfectly happy to step aside especially if he is confident his successor will share his commitments. i don't know of any of the freed justices will leave by choice between now and the 20/20 election. >> so let's test that proposition.the you save the accord is viewed as political the end when they leave voluntarily to make an effort to lead underwriter president that shares their views doesn't that into the political motive to the court bucks to make you give that to the justice. a really folks don't hear me
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to say it is a political we know that is not what we hope to be true but it shouldn't be beholden to the contemporary pedal -- political process and that is what is in jeopardy here. so are their policies that affect their retirement? yes. or food aid will nominate? absolutely. the malaise has been true. for the court of legitimacy your judicial power but the reason why cases are decided it is to a particular president and that as many get into trouble. >> of course, had to be. if you look at the process of politics, or by blocking those of the ideology there
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is no surprise that all. used to be the case you could put politicians on the supreme court because we had an understanding that was were not politics but over the last three decades largely thanks to the legal academy is a misunderstanding of law. that is a deeper crisis that leads to concerns of political as asian of the court spirit and they blame those law professors just to clarify from the general counsel but that is material for my point. but when i was genet - - general counsel they were confirmed the ammunition
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they tried to get the nomination. >> because it was controlled by republicans. to understand the history of the confirmation process of alaska decades the first thing to look at is who is controlling the senate? that is 90 percent of what you need to know. >> so to suggest recent democratic party does anybody know the last supreme court justice democratic confirmed by republican senate? 1895. and he was a giant laugh laugh i don't know if we can say it is a recent phenomenon. politics to unravel what to do with the confirmation process but what is
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different in degree and kind and would is different is not necessarily end of long term. >> again calcite the comments from the white house counsel that she would recommend the same course. >> is the baked into the process because the senate is in the hands of the party greg. >> so take that to the natural conclusion that whenever there is any device in washington the right answer to conflict is an action. right answer is do nothing. >> that is a naturalth extension of my argument. >> how was it not? the fascinating op-ed that he knows of what he speaks
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in "the washington post" about the lesson that we should really take away from the republicans reaction by the way even before garland was nominated for was no principle it is all about power end of the sooner we except that to have conversations like this and if that is true in the leading that matters is how they control power. so as a last 10 months have indicated why do we have a supreme court? >> imagining a supreme court where one of the three oldest justices' ginsberg or kennedy or justice breyer replaced by a trump nominee and chief justice robert was thrust into the swing seat, what kind of world are we in?
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what type of president might be under pressure quick. >> that depends on the two justices are but the prime target the case of has corrupted american politics is rovers' is weighed. -- growth be weighed.. so i hope that is on the firing line sooner rather than later. maybe there other cases as well but over the last few months some law professors were salivating over the prospect of low liberal supreme court have their own heaviest of cases that were wrong the moment they were decided to should be overruled immediately but i don't think conservatives
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have a long list like that the cases will, up and what you see is an effort on the part to see things out. in recent years conservatives divide. i never made the argument that regionalism yields easy answers. there can be difficult questions but what is curious how liberal justices are always together. i have not affiliated urbana associated with the of what professor and second part of what we don't see separate opinions from the left is not because they endorsed the are rational.us >> we just care about results.
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>> but what happens when justice scalia right san opinion that was up prior president and he said igor agree with what they said have is just overruled? it is not just when one side is guilty. >> so that was a case there was a disagreement? so those that always together that is a sharp divide. >> but my point is it is more complex. >> give me the counter examples. >> of what? they are in disagreement? justice ginsberg says the rationale is incorrect for equal perception. >> she has more faith in stare decisis because of the vote.
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>> for better or worse. as former boss justice scalia one-third tries talks about pending cases. [inaudible] then he would recuse himself. >> what do you have in mind?ve >> one month before the oral argument he did think of the enemy, and should be tried in military courts gimmicky made clear the position was already taken in previous cases been michael never had a military case up to that point. >> at all think it is point to quibble over the historical record but the larger point is the underlying question that becomes vulnerable. >> so with that one vacancygr away? >> i have heard that story before 1988 required all
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thing that turned out the way it expected. donald trump said in the second or third degree automatically would be overruled i guess there were a couple of nominations in the 80s and 90s and it didn't work out that way. >> with they learned their lesson with the justice souter nomination greg. >> and paolo that was learned that is the effort to have a stealth conservative on the court with the senate democratic majority. the no more justice souter care is a law of weight and is right that for years people have said they just so to overturn roe v wade and that did not happen but
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i am quite aware of that but right now is a much more sophisticated conservative legal movement nominating area myers illustrates that. it used to be that the technology and the internet explains this but there is a big factor but basically we know what we are doing is not something the conservatives will accept any more. >> i would say very briefly a world where john roberts is a very different from where we are today. . .

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