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tv   Key Capitol Hill Hearings  CSPAN  April 22, 2014 10:00pm-12:01am EDT

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my real question, how to do encryption -- my real question is, how can you actually put the genie back in the bottle? dennis kucinich was in congress and it was before edward he was part of a group of congress members trying to get this abolished. it was seen as being duplicate cia, fbi, mind do you need this renegade agency? is it possible to republish that now with all of the relegation? - all of the revelations? i still believe it's possible to rein in the national security that we are state becoming. if i do not believe that, i would not be out on the lecture circuit every weekend talking to students like you.
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i would have given up. i guess i still believe that we can recover our democracy from the police stated becoming. terms of encryption, i'm not a technologist that even i heard ahow to use pgp, good privacy. it's easy. you can install it as a nap on your phone and put it on your computer. it is just one of many encryption mechanisms. adm, otr, tor, tails. others get more sophisticated gp is pretty basic encryption that's not too difficult to looearn. partieshave some crypto -- really, they do this and other countries. i believe every journalist should learn how to use basic encryption. of theon the board
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freedom of the press foundation with edward snowden. if you look at press freedom foundation's website, we have made available and encryption methods for journalist like those for wikileaks i can be .icked up for he and used >> they will walk you through it. they have secure drops so people can blow the whistle through news outlets in a secure way. can actually really help in this endeavor. >> you should get the wording of the fourth amendment carried in your pocket and pass it out weple to remind them that have other means of protecting our privacy. instrumental and i want to thank the government accountability project. .ots of people really helping the school is really great in
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having this conference. do you have some closing remarks? >> i wanted to ask one question and echo what you just said. we thank you all for coming. it's been a remarkable evening. go on at the tudor center at 11:30 a.m. room 227.'s i wanted to ask one question. by noted a piece libertarian david cole. use more critical of the songs -- assange and manning. , some specific warlords and cables may have revealed
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conduct without the disproportion the safety, manning's dump of several hundred documents was not nearly tailored. he said the state department leak in particular out in individuals who put themselves a considerable risk. , do youant to ask you think there are distinctions to be made? are there times when leaks should not be made? >> i don't think all secrets should be out there. sources and methods should be kept secret. nuclear designs, troop movement, things like that. the problem at the argument made is that a lot of whistleblowers are accused of either overexposing or under exposing. bradley birkenfeld did not give enough about swiss bank secrecy. chelsea manning gave away too much information. legally, the law does not turn
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how much youm of disclose. it turns on whether or not the disclose or had a reasonable belief that what he or she saw as evidence, fraud, waste, abuse, illegality, so i think to point is missed my trying make the analysis turn on that. i think we can all agree that it isthe collateral alone definitely whistle blowing and a lot of the other stuff in terms of all of the phantom arm that the government talked about as one of the few people who did actually go to parts of his court-martial -- her the governmentn tried, damage, harm. when it came time for the government to produce a damage themsment, the judge gave numerous opportunities and they could not produce a single damage assessment.
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>> it's funny when you mentioned having made this the ancient earlier but leakers and whistleblowers, my wife hated that i was called a leaker. she thought it made me sound incontinent. had to get used to it. .t's better than traitor there legitimate secrets and should not be told? you mentioned giving valerie's was not just unnecessary, not whistleblowing. it was wrong. it should not have been leaked. i could not imagine -- i don't think i would have known anyone who would have given the name of a covert agent who was doing something worthwhile, not true , butl cia covert agents
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running anti-proliferation efforts endangered by putting out that name. that's an example. >> i want to object to this in a way. we get into this great argument about what whistleblowing should and should not do. no one ever raises the argument about the 99.99% of information that is select overly leaked by people in power whether it is the deputy sheriff, the defense department, what have you. have looked at my own profile and it was really nasty stuff made up that could have certainly lost jobs. when you look at what they try to do to martin luther king, for god's sake, that whole record of oneroying people, and no ever throws the argument back. manning, whoadley told us that we were killing
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civilians in our name and we made a game of it, let's question him. or her. let's challenge that. the thing that i've been trying to call attention to this evening, that the normal way news is covered about national security and foreign-policy is by the government telling you their side of the story and calling it classified until they leak it to you. it is those on attributable sources and they shape the unate. -- it is those attributable sources. just thepointed out other day. you look at what is routinely sad right now. look at zero dark 30 on the question of torture. they finally admitted that the study shows that torture did not make us safer in any way. there was no defense of torture.
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movie was made with selective leaks from the government. if you look at the story of how that movie was made -- klick zero dark 30. >> they were at a meeting where they honored cia people with secret meetings to talk about the mission to get bin laden and movie producers were thought to be making a movie that was going to make the cia look good were given this information and passed on the light. this is the routine that's been going on. but we have to get over his we are so different than those other countries. we have this whole thing about china, right. they do all this cyber stuff, all this bad stuff, china, right? putin is the most evil guy ever. >> such propaganda. but they all use the same dreary argument. they all say they are making
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their people safer. they all say the people on the other side are traitors, bad people, so on. the basic idea from those founders, i know they are flawed it all the ways my wife will tell me on the way home, but they were an incredible group of people. they knew some basic truths. you could not have an empire and a republican the same moment. the whole idea of limited government is if you are going to conquer the world and have power, you are going to live. you are going to engage in messing around with peoples lives and you will become a responsible and you are going to have to torture. of way is to have the notion limited government, restraint, right of the individual. that is why you find of the opposition is not liberal or conservative, democrat or republican. what i see in snowden and the
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people are unique individuals in that they care about individual freedom and the integrity of the individual above paying allegiance to some notion of state power. that is the core of the u.s. constitution and it's something we should honor. let me close this evening by thinking you people for being here. [applause] [captions copyright national cable satellite corp. 2014] [captioning performed by national captioning institute]
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>> over the next few hours, we're going to focus on issues before the supreme court. today, the supreme court heard a case on whether a technology lettingviolates law customers record local television to watch later. we will have the oral argument in a few minutes. later, a conversation with justice sonia sotomayor or at georgetown university from last week. headline of the aereo supreme court case changing tv forever. transmit content over the internet using thousands of dime-sized antennas for eight dollars a month. abc, cbs,rs including
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nbc, and fox say it is a blatant theft. ,f they rule the services legal this could throw a wrench in the broadcast business model in which cable and satellite companies pay billions to the tv companies for the right to broadcast programming and broadcasters say that a victory before the supreme court could prompt them to yank programming from free tv and move it to pay channels like showtime. we will hear now from an attorney from abc and other broadcast networks and a representative from aereo. >> arguing counsel for the networks today. i just want to say that obviously, we're very glad to be before the court today in the cases here on the petition that we filed trying to seek review of the second circuit decision because we got the second circuit decision was profoundly wrong and a real threat to the
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nature of the broadcast industry as we know it and we are very happy to be in court today. we are obviously very pleased with the way the court considered the arguments. i think they understood the technology. they understood the fact in this case very well. they will focus on the interpretation of the statute and we conveyed to them our relatively straightforward position which is that a service can not provide live tv over the internet to thousands of paying strangers without engaging in a public performance. it's as implies that in the statue protect public performance rights that are at issue here and there technology and service violates the public performance right. [inaudible] i don't think we perceive a weakness there. we presented this case
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ultimately is a question of statutory interpretation for the court. that is certainly the way i think the court will process this. they are obviously concerned about the consequences for the broadcast industry and for other technologies. i think they also understand that there is a fundamental difference between a service that provides content in a first and cents and something that provides essentially a storage service. some ways it's the analogy between a car dealer and a valet parking service. one provides cards to the public and the other simply provide your car back to you. i think you can make potentially similar distinctions in this case. ultimately, of course, what we urge the court to do is to decide the case of aereo in the leaves of those for another day. [inaudible]
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>> i don't think i would do anything differently which is not to say that any argument could not be improved upon. the principal point of oral argument at this stage of the case is really to answer the justices questions and the briefing does a lot of laying the groundwork for the case and we felt like the justices had very good questions and we were happy to try to point them in the right direction in terms of our view of the case. >> were there any questions that surprised you? >> one of the questions in this case, i suppose, does implicate how the copyright laws are going to apply in the digital age. we certainly think there's nothing about the digital age that makes the copyright law obsolete but some of the arguments being made on the other side of this case that suggest as long as the content is provided by the push of a button then the provider of the content is not doing anything, i think that could revolutionize
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the technology in the digital age. our view is that congress clearly addressed this issue back in 1976, the technology neutral terms. congress went further and said any device or process an hour later develops within congress has spoken on this very clearly. [inaudible] copyright cases in my experience are interpreted as questions of statutory interpretation. some justices maybe start with more concerns with content providers and others. >> what's at stake? >> i think what's at stake is
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really the nature of broadcast television as we know it. can company like aereo somehow provide content to lots of paying strangers without it being a public performance, i think at least some of them will have to rethink the way they provide content. the traditional understanding has been, certainly since 1976, when someone like a cable company retransmits broadcast over the airwaves to the cable consumers, they are certainly engaged in a public performance. if one changes particularly in a way that suggests that over the air broadcasts are uniquely vulnerable to this type of maneuvering, i do think companies will have to take that into account in determining where they provide content and what form they use. >> he said things went well. >> i've been to more than one argument where more than one
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person who heard the argument had a different impression. rightere asking the questions and we certainly think we provided the court with a straight or would interpretation of the performance. think you. -- thank you. my name is david frederick and i'm outside counsel for aereo. perspective, the issue
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in the case is whether consumers who have always had a right to an antenna and a dvr in their home to make copies of local over the air broadcast television, it should not be infringed simply by moving the antenna in the dvr to the cloud. the court's decision today will have significant consequences for cloud computing. we are cautiously optimistic, based on the way the hearing when a personat watching over the air broadcast television in his or her home is engaging in a private performance and not a public performance that it would implicate the copyright act. thank you very much. >> we've got a get out here. thank you so much. sorry. no questions. like you just heard about the
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aereo case and whether they violate copyright law. be fridayrgument will night 8:00 p.m. eastern here on c-span. in the case decided today, the supreme court dealing another blow to affirmative action programs upholding the right of states to ban racial preferences in university admissions. ,n announcing the decision "this case is not about how the debate over racial preferences should be resolved but to stop michigan voters from making their own decision would be an unprecedented decision on a fundamental right held by all. states, california, florida, arizona, nebraska, oklahoma, new hampshire, have similar bans. others now may seek to follow suit. here's the oral argument from october.
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>> we will hear argument next today in case 12-682, schuette v. the coalition to defend affirmative action. mr. bursch. >> thank you, mr. chief justice, and may it please the court, the issue in this case is whether a michigan constitutional provision requiring equal treatment violates equal protection. and for two reasons, the answer is no. first, unlike the laws at issue in hunter and seattle, section 26 does not repeal an antidiscrimination law. instead, it repeals preferences and thus, it's an impediment to preferential treatment, not equal treatment. >> holt had nothing to do with an antidiscrimination law. it had to do with a remedy, defective segregation. why isn't this identical to seattle? >> justice sotomayor, it's not identical because of the remedy issue. in seattle, they were trying to create, in the court's words, equal educational opportunity by imposing a remedy that would result in equality in the schools. >> you don't think that the
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proponents of affirmative action are attempting to do the same thing? one of the bill sponsors here said that this constitutional amendment will bring back desegregation in michigan, and it appears to have done just that. >> well, there's two points to that question and i'll address them both. first on the merits, under grutter, the point of preferences in university admissions cannot be solely the benefit of the minority, because under grutter, it's supposed to benefit the campus as a whole through diversity, and which we think is a laudable goal. it's a forward-looking action, not a backward-looking action, to remedy past discrimination. and we know that because under grutter, you can use preferences whether or not there's de facto or de jure segregation, simply to get the benefit. but with respect to your -- your point about the university of michigan and what has or has not happened here, two thoughts on that. first, we have the statistics that we discuss in our reply brief where it's
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not clear that -- that the diversity on michigan's campus has gone down. but our main point on that is -is not those numbers, but the fact that there are other things that the university of michigan could be doing to achieve diversity in race-neutral ways. for example, we know that >> i thought that in grutter, all of the social scientists had pointed out to the fact that all of those efforts had failed. that's one of the reasons why the -- i think it was a law school claim in michigan was upheld. >> well, there's social science evidence that goes both ways. but i want to focus on the university of michigan because there's two things that they could be doing right now that would get them closer to the race-neutral goal. the first thing is that they could eliminate alumnae preferences. other schools have done that. they have not. that's certainly one way that tilts the playing field away from underrepresented minorities. >> it's always wonderful for minorities that they finally get in, they finally have children and now you're going to do away for that preference for them. it seems that the game posts keeps changing every few years for minorities. >> given the makeup of michigan's alumnae right now, certainly that playing field would be tilted the other way.
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the other thing that we practice is socioeconomic diversity. and at the university of michigan, there was a stat in "the wall street journal" just two days ago that if you measure that by pell grants, the number of students who are eligible for those, at the university, the number of students who have pell grants is half what it is at more progressive institutions like berkeley and the university of texas at austin. so the university of michigan could be trying harder. but our point isn't to get into a debate about whether preferences are a good or bad thing, because that's not what this case is about. the question is whether the people of michigan have the choice through the democratic process to accept this court's invitation in grutter to try race-neutral means. >> mr. bursch, could you go back >> well, while you're on
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seattle, can you -- i have difficulty distinguishing seattle. here there's a board of trustees. is that a distinguishing factor in the case in which a principal distinction could be made? >> i think it's a distinguishing factor. you know, kind of sticking with how hard is it under the new political process. and i think the chart that we have on page 17 of our reply brief explains that it's really easier to change race-based admissions policies now than it was before section 26. and that's one basis. but i think the more fundamental basis is to say, you know, what seattle is about. and -- and if you indulge me, i'm going to suggest that seattle could mean one of three things. one of those i think you should clearly reject, and then the other two i think are -are possible interpretations that you could adopt. when seattle talks about racial classifications, it focuses on laws that have a racial focus. at a minimum, that part of seattle has to go because if you
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had a race-neutral law, like michigan's equal protection clause, which forbids discrimination on the basis of race or sex -- you know, it mirrors the concept of the federal clause -- that itself would be subject to strict scrutiny because it has a racial focus. so we know that can't be right and that's respondent's position. so that leaves you two other choices. and one would be an incremental change to this political restructuring doctrine, the other would be a more aggressive change. the incremental change would be to interpret racial classification in seattle as meaning a law that, one, repeals an antidiscrimination provision, as it did in hunter and seattle, and two, removes that issue to a higher level of the decision-making process. that would be a way that you could keep seattle and hunter as a viable doctrine, and still rule in our favor on this case. >> i don't see the distinction. bussing could be viewed, and was
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viewed, to benefit only one group. it was a preference for blacks to get into better schools. that's the way the case was pitched, that was its justification, and to integrate the society. affirmative action has the same gain. >> right. but there's a difference between favoring diversity as an abstract concept on campus, which grutter clearly allows, and remedying past discrimination, which was the point of the bussing in seattle. and that's why we're really in a post-seattle world now, because under >> but there -- there was no proof that there was any de jure segregation in seattle. >> that's correct because, at the time of seattle's decision, we didn't yet have parents involved, and so there wasn't a strict scrutiny test that was being applied to that bussing program. and so you didn't have to go as far as you would today if you wanted to uphold that same bussing program. there are three things. one, the first you reject. >> yes. >> the law was a racial focus. >> it can't be because of racial focus. >> ok. and the second was an incremental improvement in the -- in the democratic process -- or democratic responsibility? >> that, plus >> responsiveness, i guess. >> right.
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that, plus repealing an antidiscrimination law. i think that's a narrow way >> and was there a third, did you say? >> well, the third way is really to look at racial focus and say that's wrong, and maybe this whole doctrine needs to be reexamined. and the way that you could do that is to look at what seattle and hunter are really doing, which is falling right into the washington v. davis line of cases. both of those cases could have been resolved by saying, one, there's a disparate impact, and two, given the facts and circumstances in 1969, akron, ohio and 1982, seattle, washington, that there was discriminatory animus based on race. and if you did that, you could reconcile those cases with washington v. davis and the entire line of equal protection jurisprudence this court has used since that time. >> but there is such a claim in this case, it just wasn't decided -- wasn't there a racial
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animus, that the reason for proposition 2 was to reduce the minority population? the court of appeals didn't get to that, but there was such a claim. >> there was a claim but there was also a decision. the district was clear in this. this was a summary judgment posture and the district court concluded there was not even a question of material disputed fact with respect to intend. 317-37 -- 319. the primary motivation included so many nondiscriminatory reasons including the belief of michigan that preferences are themselves race discrimination. a race neutral alternative is the better way to achieve diversity. some people believe the preferences result in a mismatch.
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>> that seems a good distinction for hunter. but not necessarily distinction in seattle. settled you could argue there were other methods that were less racially divisive. cracks that fits into the framework. if you have any question about place totle meant, the look is the decision in cuyahoga falls. the court mentions the evil of discriminatory intent present in seattle. the197 and it talks about statements as evidence of discriminatory intent in the hunter case. i think if you look at cuyahoga falls that has done some of the work for you. >> water this -- one of the sponsor said it was intended to
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segregate against the voters in not filledthey were with animus. some care about their children not having outsiders come in. there is always voters who have good intent. >> that is true and there is always some bad apples. we do not dispute that point. here you have a district court holding that is not a question of fact with respect to animus because there are so many reasons that could be advanced. legitimate reasons about mismatch and the benefits. >> and seattle is well. of animus.issue what i would consider the more conservative way to do with seattle and hunter, one that would preserve those as a doctrine is to think how wrightman would come out. you had antidiscrimination laws which would repeal by a state constitutional amendment.
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reliede court did is it on the california supreme court's finding there was discriminatory animus in striking down those antidiscrimination laws. seattleiew hunter and similarly where if you repeal an that isrimination law the narrow way to cabin those cases and ones that -- a way that would allow those cases to survive, yet to distinguish section 26. one point that we haven't discussed much is the democratic process, and it's important that i emphasize that, obviously, the use of race-based and sex-based preferences in college education is certainly one of the most hotly contested issues of our time. and some believe that those preferences are necessary for campus diversity. others think that they are not necessary, and in fact that we would have a much better world
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if we moved past the discussion about race and instead based it on race-neutral criteria. >> mr. bursch, can i ask you to go back to the very first thing you said, because i didn't get your -- your point. the question -- what impact has the termination of affirmative action had on michigan, on the enrollment of minorities in the university of michigan? do we have any clear picture of that, what effect the repeal of affirmative action has had? >> yes, justice ginsburg, we have a muddy picture. as we explain in our reply brief, the first thing that we have is the actual statistics for the first full year after section 26 went into effect. this is 2008. and what we find is that the number of underrepresented minorities as part of the entering freshman class at michigan as a percentage changed very little. it went from about 10.75% to about 10.25%. then it gets very difficult to track, because, following the u.s. census's lead, in 2010 the university of michigan stopped requiring students to check only a single box to demonstrate what
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their race or ethnicity was and moved to a multiple checkbox system. and justice sotomayor, when you see in the amici briefs that there has been a dramatic drop, for example, in african american students on campus at the university of michigan, those numbers don't take into account that people who before were forced to check a single box now could be checking multiple boxes. and if you fold in the multiple checkbox students, the number of underrepresented minorities on campus actually comes out higher. now, we don't know what those numbers are, because you could have a student who might be white and asian and they would not be considered an underrepresented minority, and they could be in there, but we know that the numbers are a lot closer than when you just look at single checkbox students in isolation. >> so what do we do with the statistics from california? an amici from california, their attorney general, has shown, another state with a similar proposition, has shown the dramatic drop.
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>> well, the statistics in california across the 17 campuses in the university of california system show that today the underrepresented minority percentage is better on 16 out of those 17 campuses. it's not at berkeley, they haven't gotten there yet, but it's better on the rest. and by going to race-neutral criteria, what they discovered was that underrepresented minority students have higher gpas, that they take more technology, engineering and math classes, and they have a graduation rate that is 20 to 25 percent higher than it was before california's proposition 209. you can see similar effects in texas in their top 10 percent program before it was modified. and not only did it have those positive impacts, but it actually increased minority performance at social-economically disadvantaged high schools, where the students said -- hey, if i can only get into the top percent of my class, i can be in the university of texas at austin. and again, we can all agree that diversity on campus is a goal that should be pursued. what the california and texas
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experiences have demonstrated is that there are good, positive reasons why the voters might want to try a race-neutral alternative. >> so why is it ok to have taken away -- not ok to have taken away the decision to have bussing from the local school boards, the people on the ground, but it's ok to take that power away from the people on the ground here, the board of regents, who are also elected like the school board was in seattle? >> because as >> the general population has feelings about many things, but the only decision that they're -- educational decision that they are taking away from the board of regents is this one -- affirmative action. everything else they leave within the elected board of regents. >> you've put your finger on the
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fulcrum of respondents' best argument, that only race as a factor alone has been removed. and there their argument is exactly backwards, because it's not michigan or section 26 that single out race. it's the equal protection clause itself, because, justice sotomayor, if a student wants to lobby for an alumni preference or a cello preference and put it in the state constitution, strict scrutiny is never applied to that effort. but when you try to get a preference based on race or not based on race in the federal -- or the state constitution, strict scrutiny is always applied. and so it's the equal protection clause which is making a differentiation between race and everything else. and that's why this court in crawford, again decided the same day as seattle, at page 538, recognized, quote, "a distinction between state action that discriminates on the basis of race and state action that addresses in neutral fashion race-related matters." and section 26 falls into that latter category. >> you have been asked several questions that refer to the ending or termination of affirmative action. that's not what is at issue
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here, is it? >> no, and i'm glad that you brought that up, chief justice roberts, because affirmative action means a lot more than simply the use of race or sex-based preferences in university admissions. article i, section 26, only focuses on this one aspect of university admissions. now, another important point to understand is that section 26 is not all about university admissions. this is actually a much broader law that applies not just to race and ethnicity, but also to sex and other factors, and that affects not just universities but also public contracting and public employment. this was a broad-based law that was primarily motivated by the people of michigan's decision to move past the day when we are always focused on race, exactly as grutter invited the states to do. and you can -- you can see how that discussion gets mired when you look at some of these statistics that we have been talking about. is someone who has multiple racial boxes checked more or less diverse than someone who
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only has one box checked? is someone who comes from outside the country -- say from mexico >> you've done something much more. you are basically saying, because fisher and grutter -- we've always applied strict scrutiny >> correct. >> all right. so it's essentially a last resort, within some reason. but what you are saying, if all those other measures fail, you're by constitution saying you can't go to the remedy that might work. >> no, that's not what we are saying. >> well, but you're -- but this amendment is stopping the political process. it's saying the board of regents can do everything else in the field of education except this one. >> well, again, it actually runs the other way, because equal protection is what singles out race-focused measures for strict scrutiny. but what we're saying is under grutter, race preferences are
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barely permissible. it cannot be unconstitutional for the people to choose not to use them anymore, to accept this court's invitation in grutter, to move past the discussion about race and into a race-neutral future. >> what would you do with a constitutional amendment that said pro-affirmative action laws, and only those, require a three-quarters vote of the state legislature? >> well, under what we're going to call the narrow "save hunter and seattle," something like that would be unconstitutional because it removes an antidiscrimination provision and moves it to a higher level of government. now, one of the problems with keeping that doctrine is it could also work the opposite way. you know, pretend that the political climate in michigan was turned on its head and that universities had agreed that they were no longer going to use race or sex in admissions and that it was the state electorate, either in the legislature or in the
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constitution, which imposed a grutter plan on everyone. well, under hunter and seattle, that would have to go because that law removes an antidiscrimination provision and moves it to the higher level. and so that would be one reason why you might want to take the washington v. davis approach and consider whether there's discriminatory animus based on race. but, you know, in either of those cases, i think you can either, you know, pare down the doctrine or get rid of it entirely and distinguish our case from it. but the one point that i want to leave you with today is that the -- the core of respondent's arguments that somehow a racial classification can be any law that has a racial focus, cannot be the right test. no matter what, that portion of seattle and hunter has to go, because equal protection is about protecting individuals, not about protecting laws, and even nondiscriminatory race-neutral laws that have a racial focus would fall under their racial focus test. you know, the hypothetical we give in our briefs on that,
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besides a state equal protection clause, would be the federal fair housing act because it references race, it has a racial focus, in the words of seattle and hunter, and it has the ability of preventing anyone from lobbying for preferences based on their race or sex at lower levels of the government, either state or local. so under their theory, the federal fair housing act would have to be applied under strict scrutiny. and their only response to that in the brief is that -- well, the supremacy clause takes care of that problem. and we all know supremacy doesn't kick in until you first determine that the federal law itself is constitutional, and it wouldn't be under their theory. so -- so what we're asking you to do is eliminate that portion of hunter and seattle that suggests that a law's racial focus is the sine qua non of a political restructuring doctrine test and to either >> mr. bursch, isn't >> yes. >> isn't the position that was taken in seattle derived from a
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different view of the equal protection clause? i mean, strict scrutiny was originally put forward as a protection for minorities -- a protection for minorities against hostile disadvantageous legislation. and so the view then was we use strict scrutiny when the majority is disadvantaging the minority. so you do, under the carolene products view, you do focus on race and you ask, is the minority being disadvantaged? if that were the view, then i suppose we would not be looking at this, well, the criterion is race and wherever the disadvantage falls, whether a
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majority or minority, it's just the same. that wasn't the original idea of when strict scrutiny is appropriate. so if we were faithful to that notion, that it is -- measures a disadvantage the -- the minority that get strict scrutiny. >> well, two thoughts on that, justice ginsburg. first, under grutter, this court made crystal clear that a grutter plan is not about which minority group is being advantaged or disadvantaged. it's supposed to benefit the campus as a whole. and to the extent the claim is that preferences benefit certain classes of minorities and not others, you know, for example, it benefits african americans and latinos, but not asians, even though they're both discrete and insular underrepresented groups, that -- then it fails under grutter. it can only be something that benefits everybody. but more fundamentally, going back to your question about the origin of the doctrine, i think
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it's really important to understand why we have hunter, because hunter, remember, was decided before washington v. davis. and when you look at the face of the law in akron, ohio in hunter, there's nothing in there that would trigger strict scrutiny. and so this court was searching for another way to -- to strike down a law that removed an anti-discrimination provision and made it more difficult to reenact at the higher level of the political process. it needed something to fix that. and our point is you can either construe it to do exactly that, that only antidiscrimination laws being struck down and moved to a higher level can satisfy a political restructuring doctrine, or you can look at it differently. you can say -- now that we've got washington v. davis and we all know what the intent was in akron, that that is a simpler way to address this -- this problem and we really don't need the political restructuring doctrine at all anymore. but the reason why we had the doctrine in hunter is because strict scrutiny did not apply. >> you said that the district
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court found it was clear that there was no -there was no discriminatory intent, but that wasn't reviewed on appeal. >> no, it was not. but it wasn't a finding. it was actually more than that. it was at the summary judgment stage. the district court correctly concluded there wasn't even a question of disputed material fact as to whether intent was the primary motivation of the electorate. unless there are any further questions, i will reserve the balance of my time. >> thank you, counsel. mr. rosenbaum. >> mr. chief justice, and may it please the court, let me begin, justice kennedy, with the questions you raise and then come to the question that chief justice roberts raised. to begin, justice kennedy, there's no way to distinguish the seattle case from this case nor the hunter case. both those cases have to be overruled. here is why the seattle case is
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-- is identical to this case. both issues -- both cases involve constitutionally permissible plans which had as their objective obtaining diversity on campuses. seattle was a k through 12 case. this case is a higher education case. but in both instances, the objective was to obtain diversity. no constitutional mandate to relieve past discrimination. rather, in fact, as the court said, seattle, tacoma, and wasco were attempting to deal with de facto segregation. >> is that an accurate description of seattle? i thought that in seattle, before the school board adopted the bussing plan, the city was threatened with lawsuits by the department of justice, by the federal government, and by private plaintiffs, claiming that the -- the previous pupil assignment plan was -- involved de jure segregation. isn't that -- isn't that correct? >> that's correct with respect to at least one of the
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districts, justice alito. but in terms of the program itself, there's no dispute that it was done pursuant to a plan for de facto segregation. moreover, the question you asked, justice kennedy >> i don't understand the answer to that question. as to seattle itself, is it not the case that they were threatened with litigation? >> yes, but there'd been no finding, justice alito, of de jure segregation. >> and isn't it correct that the district court found that there was de jure segregation? >> that is not correct. >> it didn't? >> there was -- there was no finding whatsoever that there had been de jure segregation and that there was a constitutional imperative to correct that desegregation. it was an absolutely identical situation. and regarding the accountability, your honor is correct that in seattle what we were dealing with was an elected school board and here, as the michigan brief says, as the wayne state brief says, as the court specifically found at pages 326a and 327a of the record, this is a political process in which the regents were elected, have at all times maintained plenary authority over the admissions process itself, and that --
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>> well, there are two things. number one is it delegated to the faculty. and number two, they're elected only rarely and in staggered term. >> that is no question that that's correct, your honor. but the ordinary process itself is a politically accountable process. that's what the district court found when it looked at how the system worked. >> what if the board delegated to the various universities the authority to develop their own admissions programs? >> it couldn't alter -- i'm sorry, chief roberts. >> and they did, and then after several years they decided, you know, we don't like the way it's working, they're adopting too many racial preference programs, we're going to revoke the delegation. >> absolutely fine. >> why is that any different? >> because the difference is that in the seattle case, in this case, and in the hunter case, what's going on is a change from the ordinary political process, which your honor perfectly described. they can change it today. they can go to an affirmative action plan today, repeal it
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tomorrow, come back. >> so if there were a provision in the michigan constitution that says the board of regents is authorized to enact these programs, in other words delegated from the people in the constitution to the board, and then the people change the delegation by saying, no, it's no longer -- we're no longer going to leave that up to the board, we're going to make the decision ourselves in the constitution, how is that any different? >> it is different, your honor, because of the racial nature of the decision. under their theory, under their theory, the people of the state -- of a state could amend their constitution, put in the legislature two rooms, one for racial matters, one for all other sorts of matters, and say to any entrant who wants to enter that first room -- you may do so, but first you have to pay an exorbitant cover charge and then you have to mount multiple stairs, flights of stairs, just to begin the process of enacting constitutionally permissible legislation.
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or think about it in a desegregation case. a student comes in -- two students come into the admissions committee. one says -- and the admissions committee says -- we have one question for you, one question for you since you're here to talk about a legitimate -- a legitimate factor in pursuit of diversity. here's the question -- you want to talk about your race, your race in the context of other factors? and if the answer is yes, that student is shown the door, told go raise between 5 and $15 million, repeal prop 2 and then you can come back to make -- make the case. whereas the student who says, no, i've just got another legitimate factor, maybe geography. maybe alumni connections, whatever that is, that person is permitted to make the case. it is a racial distinction. now, chief justice roberts, you're certainly onto something in terms of are there race-neutral methods to get this done? of course there are. the state constitution itself could be altered so that a different committee or a different set of individuals could -- could make the decision that they don't like the way the regents are doing it. or they could do it the old-fashioned way, the way that the politically accountable
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system works, which is to say, we are going to work at these universities, that's how affirmative action involving race happened in the first place. that's at pages 270 to 271a and 282a to 293a. they worked for years to make that happen. >> well, i thought the whole purpose of strict scrutiny was to say that if you want to talk about race, you have a much higher hurdle to climb than if you want to talk about something else. now, you can argue that strict scrutiny should only apply to minorities and not to students who are not minorities, but i thought the court decided that a long time ago. >> exactly. >> so i don't know why that's a hard question that you asked about the student who says, i want to talk about race. what if it's a white student who comes in and says -- i want to talk about race, i'm white and therefore you should admit me, you should give me preference. the state can't say, no, we don't want to hear that? >> the state can say, we don't want to hear that whether it comes from a white person or a black person or whomever, if in fact, they are not doing it on a race-specific basis.
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you're exactly right, of course, about strict scrutiny. and the programs in this case, indeed, the only programs in this case that are effective, are those that have passed strict scrutiny -- >> well, i don't understand your answer then. if the student -- one student comes in and says i want to talk about how well i play the cello, all right, we'll listen to that. i want to come in and talk about why i as a white person should get a preference, you have to listen to that because you're listening to the -- to the talk about the cello, too? >> you do, your honor, when the program has passed the strict scrutiny test that we're talking about. and that's the only sort of program that is at issue in this case. of course you're correct. if it is a gratz type program, if it's unconstitutional, if it's a quota system, you don't have to listen to anybody talk about race. but we are only dealing with constitutionally permissible programs. why it is impossible, impossible to distinguish seattle? and this argument about hunter, page 389 of the hunter decision is the reason hunter was decided. it's not a washington v. davis
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case. >> well, i'm not sure i understood the answer you gave to the chief justice's hypothetical. maybe i misunderstood the hypothetical. suppose the board of regents have a rule, it's written, it's a rule, that the faculty makes a determination on whether there should be affirmative action. >> yes. >> five -- and the faculty votes for affirmative action. three years later, the board of trustees said we're abolishing the rule, we're doing that ourselves. violation? >> assuming that the regents say that's fine, no problem whatsoever, no problem whatsoever. that's the ordinary political process. >> so the -- so the regents can take it away from the faculty? >> the regents have plenary -- >> but can the legislature take it away from the regents? >> not under the michigan constitution, because the michigan constitution -- >> no, no. hypothetical case. >> ok. under -- who's got the authority
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here? the legislature can take it away. that's not a problem in a situation where that's part of the ordinary process. >> but then the voters can't take it away. at what point is it that your objection takes force? i just don't understand -- >> where there is -- >> the declension here -- >> my apologies, your honor. >> or the crescendo, whatever you call it. >> both are music to my ears. the point, justice kennedy, is that the people of the state have multiple options available to them if they don't like the way the universities are operating. but the one option they don't have is to treat racial matters different from all other matters. the example that you gave -- >> that applies in the chief justice's hypothetical or my revision of it as between the board of regents and the faculty or between the faculty and the legislature. >> exactly. and the problem -the problem that the restructuring process gets at, because of the particular concern that this court has shown with respect to the political process, that the political process itself not become outcome determinative, that the political process itself be a place where we can air these discussions, but not create it in a separate and unequal way to make the -- to
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him actually make the decision itself through the process. >> why is -- why is the faculty administration, a faculty decision, any less outcome determinative than what the voters would say? i -- i think there would be people that might disagree with your empirical assumption. >> then i'm not explaining it clearly. the first -- the -- when the faculty makes the decision, justice kennedy, that's part of the ordinary political process. nobody's allowed to win all the time. no one has to win all the time. no one has to win all the time. whatever it is, it is. that's the ordinary political process. that's how we use the political process. the problem with -- with mounting a racial classification within the constitution itself is that then -- that takes the ordinary political process to the extraordinary political process. >> so i mean, you could say that the whole point of something like the equal protection clause is to take race off the table. is it unreasonable for the state to say, look, race is a lightning rod. we've been told we can have
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affirmative action programs that do not take race into account. socioeconomic diversity, elimination of alumnae preferences, all of these things. it is very expensive. whenever we have a racial classification, we're immediately sued. so why don't we say we want you to do everything you can without having racial preferences. now, if the litigation determines that we're required to have racial preferences, this statute has an exception and -- and allows that. but starting out, we want to take race off the table and try to achieve diversity without racial preferences. >> the problem, your honor, as this court stated as recently as last term in the fisher case, is that under the equal protection clause race is not all the way off the table. and the problem with proposal 2 is that the substance and the message that it communicates is that because of the separate and unequal political track that is created with respect to the extraordinary steps that have to
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be taken, the message is that, even where race is being utilized as one of many factors in a constitutionally permissible way, the message that is being communicated is that all uses of race are illegitimate, all uses of race are -- are off the table, that "race" itself is a dirty word. >> why -- why doesn't the fourth amendment violate the rule you're saying -- or the 14th amendment violate the rule that you're proposing? i mean, i'm a minority and i want laws that favor my minority. not just in university, everywhere. my goodness, i can't have that through the normal legislative process. i have to get a constitutional amendment to do it, right? >> that is correct, your honor. >> well, so i guess -- i guess that on this subject of equal treatment of the races, we can eliminate racism just at the -- at the legislative level, can't we?
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>> your honor, the underlying basis of the entire strict scrutiny doctrine in the 14th amendment is to preclude the government, preclude the legislative and executive branch, from making those determinations as absolute determinations. the 14th amendment sets the standards and the criteria by which we measure that. of course you're correct. that's what the 14th amendment does. it sets what the rules are in terms of how race is utilized. but what the grutter case said -- >> and you can't change those rules by normal legislation, correct? >> that is correct. >> so if you're a minority that wants favored treatment, you're just out of luck. >> you have to use the ordinary political process. and that's all we're saying. >> no, but the constitutional amendment is not the ordinary political process. >> but the -- but the fact that it's a state constitutional amendment underscores my argument, which is that -- that in order for the -- for a -- the minority or any individual, and white, minority, whatever -- whatever the individual is, to say i want the same rule book, i
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want the same playing field, the problem with proposal 2 is that it creates two playing fields. >> if proposal 2 had been in the michigan constitution before any affirmative action program was adopted, would the result be the same? >> it would, your honor, because -- because it would be building in this explicitly facial racial classification into the state constitution. the problem are the separate and unequal systems that are being used to deal with race. and separate and unequal, under the 14th amendment, shouldn't come within ten feet of race. >> it's not a racial classification. you should not refer to it that way. >> it is a racial -- >> it's the prohibition of racial classifications. >> no, your honor. >> every prohibition of racial classification is itself a racial classification? >> no, your honor. the problem with proposal 2 is
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that it is -- just as in hunter, just as in hunter -- it is an explicitly facial racial classification. it singles out race for different treatment. my goodness, this was borne -- this campaign started three days after grutter itself. the author said the purpose of it was to get rid of racial preferences. >> well, if that's how you're using racial classification, i thought it meant, you know, it's directed at blacks or asians -- >> no. >> or no. in that sense, the 14th amendment itself is a racial classification, right? >> well, it sets the standard -- >> in that sense, the 14th amendment itself is a racial classification. no? >> i don't agree with that, your honor, because i'm measuring it as a racial classification by the 14th amendment. and that comes back to justice ginsburg's argument. his argument, his revisionist history of hunter, his -- was -- was about motive. but, your honor, that had nothing to do with the problem in this case. when the court looked -- when the district court looked -- may i finish my answer, chief justice roberts? >> yes. >> when the court looked at this particular issue, the concern was the way that it racially divided the political process itself. what he is saying is that, well, there may be all sorts of
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motives. that's a rational basis test, and that has nothing to do with the racial classification. the definition i'm using, justice scalia, is this court's definition of a racial classification, for which all sorts trigger strict scrutiny. thank you very much. >> thank you, counsel. ms. driver? >> mr. chief justice, and may it please the court, we ask this court to uphold the sixth circuit decision to reaffirm the doctrine that's expressed in hunter-seattle, and to bring the 14th amendment back to its original purpose and meaning, which is to protect minority rights against a white majority, which did not occur in this case. >> my goodness, i thought we've -- we've held that the 14th amendment protects all races. i mean, that was the argument in the early years, that it protected only -- only the
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blacks. but i thought we rejected that. you -- you say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities? >> i think it is -- it's a measure that's an antidiscrimination measure. >> right. >> and it's a measure in which the question of discrimination is determined not just by -by power, by who has privilege in this society, and those minorities that are oppressed, be they religious or racial, need protection from a more privileged majority. >> and unless that exists, the 14th amendment is not violated, is that right? so if you have a banding together of various minority groups who discriminate against -- against whites, that's ok? >> i think that
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-- >> do you have any case of ours that propounds that view of the 14th amendment, that it protects only minorities? any case? >> no case of yours. >> some people think that there is a difference between the plus and the minus. some judges differ on that point. some agree sort of with you, and some agree sort of not. all right? let's think of those who agree sort of, and then i have a question. and you know this area better than i. so think of grutter. grutter permits affirmative action. think of the earlier cases. they permitted affirmative action where it was overcome, the effects of past discrimination, but probably not otherwise. now, that's what i want to know. are there areas other than education where affirmative action would not be forbidden to achieve a goal other than overcoming the effects? have you got the question? and does an answer come to mind? >> i think that affirmative
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action programs could -- could be permissible under employment. for instance -- >> ok. so there are a set. >> that's right. >> fine. if there are a set, what i -- what i'd like you to explain, if -- if you can take a minute, is think of how a city is set up. there are a vast number of administrators. there are a vast number of programs. it could be an administrator somewhere says he'd like to give a preference, maybe for good reason. but then the city council votes no, because there are other ways of doing it, by, you know, first come, first served or some other criteria that doesn't use race. are all of those unlawful? every one? do you have to leave it up to the -- no matter what the subject, no matter what the -- or are you going to draw a line somewhere? is there a line that you could draw that would take your case on the right side from your point of view, but would say
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we're not giving power to every administrator in the city to decide on his own whether to use racial preferences without a possibility of a higher-up veto -- >> which i don't think you want to say, but maybe you do. >> no. i think these are very fact-based determinations. and so, somebody could make a decision that they wanted to use what you're calling racial preferences. and that could mean a range of things, and that could be subject to a veto higher up. yeah, i agree with you. >> so what's the line? is there any line that you can say, look here. we were trying to be very helpful, and all of a sudden they put this thing on the ballot, you can't even get it through. ok? that's your basic point. but if you think of -- you have to write something, and that something has tremendous effect all over the place. so what kind of line is there, in your opinion? >> i think hunter-seattle provides the line. i think it says that if you have a law that has a racial focus, and that law, part of proving that it has a racial focus, is that it takes a benefit that
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inures to minorities and it removes that benefit and it restructures the political process and places a special burden on minorities to re-ascertain that right, yeah, i think that's a proper rule. because it's -- it's -- >> can i -- can i come back to the question that the chief justice and justice kennedy were asking before? essentially, it's their question. let's say that the -- the decision about admissions criteria across the board is basically delegated to the faculty. all right? and the faculty adopts some sort of affirmative action plan. and now that is overruled in favor of a colorblind approach at various levels going up the ladder. so maybe it's overruled by the -- by a dean, or maybe it's overruled by the president of the university.
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maybe it's overruled by the regents. maybe, if state laws allowed, it's -- it's overruled by an executive department of the state. maybe it's overruled by the legislature through ordinary legislation. maybe it's overruled through a constitutional amendment. at what point does the political restructuring doctrine kick in? >> i think in this case, the difference between what other groups can do in order to get preferential treatment for their sons and daughters and what racial minorities are subject to, the level of distinction places such a high burden on minorities. >> well, that really -- that really isn't responsive to my question. let's say exactly what was done here is done at all of these levels. at what point does the doctrine kick in? when it goes from the faculty to the dean? from the dean to the president, et cetera, et cetera? where does this apply? >> i think it depends on where it is that minorities face a heavier and special burden. >> it can't be that, because the normal political process imposes
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burdens on different groups. i thought the line was a very simple one, which is if the normal academic decision-making is in the dean, the faculty, at whatever level, as long as the normal right to control is being exercised, then that person could change the decision. so if they delegate most admissions decisions, as i understand from the record, to the faculty, but they still regularly, besides race, veto some of those decisions, and race is now one of them, then the board of regents can do that normally. so could the president, if that's the way it's normally done. it's when the process is -- political process has changed specifically and only for race, as a constitutional amendment here
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was intended to do, that the political doctrine is violated. have i restated? >> you have, you restated it very well, and i agree with you in principle. >> but i still don't understand your answer to justice alito's question. suppose the dean has authority in the bylaws of the university to reverse what the faculty does, but you have a dean who just does not like affirmative action. he is dead against it. and he makes the decision to reverse the faculty. do you have a remedy? >> i don't think it -- i don't think hunter-seattle applies. >> all right. then you have justice alito's question. then it's the president of the university, and then it's the legislature. >> i think you need two things -- think you need the decision-making body. if the university of michigan regents decided tomorrow to eliminate affirmative action programs and there was no prop 2, they have the legal right to do that.
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they are the decision-making body. and minorities still could go and lobby the regents, still could go and talk about the questions of racial equality difference >> but would that be true -i'm sorry. would that be true if they had never gotten involved in admissions criteria before? they have the authority, but they left that to the university officials. >> i think if they have the plenary authority to do that, yeah, i think that, again, if they wanted to eliminate affirmative action programs and they had that plenary authority and it was guaranteed by the michigan state constitution and it had existed for 150 years, and they chose to enter this area, i think -- >> i don't see how that is consistent with justice sotomayor's answer to my question. don't the people of michigan have -- don't the people of michigan have plenary authority? >> in this case, the particular -it's -- they are applying that
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plenary authority in -or in a way that is racially focused, and creates a political process that is disadvantageous to minorities. >> i'm not saying instead of political process. don't let me put words in your mouth. think what you think here. you say where the authority is divided in a certain way, and that is true under the constitution of the state. so the state government lacks the power. and then you have to take the power from the people and change the constitution, and when you do that in respect to a benefit, then, in respect to benefits, washington -- you know, seattle and hunter kick in. see, where are not dealing with past discrimination.
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>> this -- what we're talking about in terms of affirmative action are constitutionally permissible programs that were shown to this court to be the only way to achieve racial diversity and integration at the university of michigan. and whether you -- whether you explain that by looking at the reality of the inequality in education for black and white michigan or whatever it is that you come up with that requires that, the university has shown that this is the only way to achieve diversity in which racial diversity is a part of the -- is a part of the quotient. and so to take away that right from the university and from the regents -- and i just want to go back to one of the questions that was answered. if you look at the law schools, the medical schools, the professional schools now in the state of michigan,
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there's been a precipitous drop in underrepresented minority enrollment in those schools. we are going back to the resegregation of those schools because of the elimination of affirmative action. >> to what extent does your argument depend -- i thought both hunter and seattle speak in these terms -- that the policies that are more difficult to enact are beneficial for the minority group. >> say that -- i'm sorry. can you repeat -- >> to what extent does your argument depend upon the assumption that the programs that you say are now more difficult to enact are beneficial to the minority group? >> i think it's an important component part, because i think it's in the benefit to the minority group that it's especially important >> well, why do you >> that the political process be on a level field.
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>> right. what if the question of whether it's a benefit to the minority group is more open to debate, whether it's through the mismatch theory that taylor and sander i guess have adopted, or other theories? do we have to assume in your favor that these definitely are beneficial to particular minority groups? >> certainly the minority voters of michigan believe them to be, because 90 percent of black voters in michigan voted against prop 2. and i think that that's a clear indication of the popularity of these programs and the perceived benefit of these programs. >> there may be a difference between popularity and benefit. in other words, you want us to assume that the programs are beneficial to a minority group? >> yes. and they are beneficial to minority groups. they may -- they may serve to provide benefits for the population beyond minority groups, but they are a benefit if they -- >> your opponent says otherwise. he says that minority students have taken tougher courses, they
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have been better qualified to be admitted, and all sorts of other benefits. so it's certainly a debatable question. >> it's a debatable question in another forum in a different case, and in fact i think that case was the grutter case. this case isn't just about whether or not affirmative action benefits minorities. it's also the restructuring of the political process and the special burden that's placed on minorities. it's not -- if you want to go back to debating the -- whether affirmative action -- >> you're changing your answer, then. your answer to the chief was it does depend and now you are saying it doesn't depend on whether it benefits minorities at all, it's just whether it places a -- a greater burden on minorities to change it. which is it? >> no, i >> one or the other? >> i think it's a two-part test. i think the first, the first thing that you look at is, is
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there a racial focus to the law, and is the benefit that's been taken away something that inures to minorities. and i think the second part of the test, and that's why i think seattle/hunter is such a narrow doctrine, is whether there also has been a restructuring of the political process and a special burden placed on minorities. it requires both. >> thank you, counsel. mr. bursch, you have 4 minutes remaining. >> thank you, mr. chief justice. i'm going to start with a sentence from crawford, decided the same day as seattle, where this court defined what a racial classification is -- a racial classification either says or implies that persons are to be treated differently on account of race." it doesn't say anything about laws with or without a racial focus. and we think that is the test
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that ultimately should come out of the decision in this case. now, my friends on the other side disagree with that, because if that's the test section 26 is constitutional. and so they draw this false dichotomy between laws that involve race and laws that don't involve race, we will put them in two separate chambers of the legislature and charge a fee if you want to talk about -- about race. and we know that can't be right, because of, chief justice roberts, your observation that the whole point of equal protection is to take race off the table when everyone is being treated the same. that's why they can't -- >> you quoted -- you quoted from crawford. >> yes. >> and there is an opposing quote in seattle itself on page, what is it, 486? >> yes. >> "when the state's allocation of power places unusual burdens
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on the ability of racial groups to enact legislation designed overcome the special condition of prejudice, the governmental action seriously curtails the operation of those political processes ordinarily to be relied on to protect minorities." and it quotes carolene products. so -- and then the following sentence is -- "in the most direct sense, this implicates the judiciary's special role, not of treating the individuals as individuals, but the judiciary's special role in safeguarding the interests of those groups that are relegated to a position of political powerlessness." so the rationale of seattle is that notion that we can't put hurdles in the way of a disadvantaged minority. >> justice ginsburg, there is two problems with that.
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first that's where the respondent's theory most closely knocks up against grutter, because you are right -- under seattle and hunter you've got to have a policy designed for the purpose of primarily benefitting the minority. but if that's the policy, it violates grutter, which is supposed to benefit everyone. but the bigger problem is if you treat a >> diversity does, but when you take away a tool for diversity that's what seattle is saying is wrong. >> right, but the bigger problem -- >> you can't take the tool away simply because it may include race as a factor, simply because you are changing the playing field. >> but justice sotomayor, the biggest problem with respondents' test, with applying the literal language of seattle, is that as i said, the federal fair housing act, the equal credit act, a state equal protection law that mentions -- all of these things fall in the category of laws dealing with race. some are discriminatory. >> seattle and this case both involve constitutional -- seattle and this case both
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involve constitutional amendments. so why can't the law -- the law be drawn -- the line be drawn there? if you change the allocation of power in one of these less substantial ways, that's one thing, but when you require a constitutional amendment that's really a big deal. >> because that would still invalidate the michigan equal protection clause which has a racial focus that says you cannot discriminate based on race or sex, and yet no one would argue it should be subject to strict scrutiny. >> that's the benefit to a minority group. but what i'm thinking is go read the cases. you yourself seem to say these cases seem to apply alike to the benefits or to the discrimination against it. i mean, there is lots of language in seattle. >> right. >> you come -- now, suppose you take that and say, all right, it was meant in context, but the context includes constitutional amendments because with the constitutional amendment you are restructuring. now you would lose on that theory, but there would be a limitation on the extent to which the people have the right
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to move powers around. >> justice breyer, the limitation has to be not only that, but also that you are repealing an antidiscrimination law, not an equal treatment law. or again, otherwise the state equal protection clause has to fall. so to the extent that i am right, that is a way that you can narrow hunter and seattle, and section 26 has to survive. if i am wrong about that, then respectfully seattle and hunter should be overruled. either way, it does not violate equal protection to require equal treatment. thank you. >> thank you, counsel. the case is submitted. >> the supreme court heard the case that will decide the fate of barrio -- aereo. the court is looking at whether the video streams violate copyright law. we will have the oral argument at 8 p.m. friday here on c-span. isduring this month, c-span
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ways to present our winning entries in this year's student cam video documentary competition. competitionannual that encourages middle and high school students to think critically about issues. the question we gave students was, what is the most important issue congress should consider in 2014? and the second prize-winning ballard sophomore at high school in seattle, washington believes the biggest issue should be gun control. i turned toward the receptionist, a young woman was sliding down the hall with her hands at her sides and i looked at her and her eyes were as big there was areate man with a gun and he started shooting. he shot carol who was the person closest to a phone who was
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sitting in a cubicle across the hallway and then he turned and he was right by me. he shot me. i did not realize it at the time. shot me and he shot labor. i thought ok, he is occupied, i can get out. i stood up and i started running out. trying to run on tiptoe so he would not hear me. first landing the and my coworker was laying there dead. \he was face up. the center hole in for chest and her eyes were open. i turned to the other direction and there was a swat team on the corner. some of them crouched, all standing, pointing these guns at me and they're yelling run. you are in the line of fire, you need to run. the got me into a hermetic man. -- into a van.
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that is all i remember. >> we need congress to arise the -- address the rising epidemic of gun violence in this nation. morel the data shows that available guns are the reason that one will be used accidentally or in anger. will getr is it worse, not better. >> if you go to a licensed firearms dealer you have to go through background check before you can get a gun and that takes a certain amount of time. the gun whole -- gun show loophole allows purchases between people without any check whatsoever. >> 6.6 million gun transactions without a background check. >> congress should pass a standard uniform universal
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background check on all gun sales nationwide. and we have a safe and consistent law. >> background checks do not work as criminals do not know through background checks. >> background checks work. millionp nearly 2 prohibited purchasers between 1994 in 2009. we have a national back and check system in place. therefore sending the background --ck to all for and purchase all purchases should be required. the background check, i of something they would make our country safer than doing something like that. >> congress should require a universal background check for anyone buying a gun. >> that would be the same thing, nothing more. 54.he yeas are
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the nays are 46. the amendment is not agreed to. >> i will speak plainly and honestly. the american people are trying to figure out how could something have 90% support in happen? the gun lobby and its allies about the bill. >> the so-called check is aimed at one thing. it is aimed at registering your guns. that registry will be used to confiscate your guns. >> they claim that it would create some sort of big river gun registry. even though the bill did the opposite. the legislation [inaudible] even the nra used to support expanded background checks. the current leader of the nra used to support these background checks. >> we think it is reasonable to provide mandatory instant, no background checks for every sale
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at every gun show. no loopholes, anywhere for anyone. >> do you still support mandatory background checks at gun shows? >> if that -- you're a dealer that is already the law. >> that is not my question. i am not trying to play games here. you say?ould >> i would ask him to step in and experience what i experienced working responsibly [inaudible] and looking up one day for my desk in having a gun pointed at my face. >> you can have all the theoretical discussions you want over what the second amendment means. you can live in a fantasy world which suggests that more people have guns the safer we are. gunsere in the real world,
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are dangerous. and we need to be more serious about them. >> put they represent all of us. doescognizing the change not always start with anyone law. the public has to make it a priority and has to hold elected officials accountable. >> that is what is starting to happen now. that is when the culture changes. >> the law then becomes a reflection of the changing culture. giant -- a sleeping giant has been awakened. there are people out there who are passionate about this, demanding action hama and i'm not going to back down -- demanding action, and they are
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not going to back down. they are getting organized. >> we can still bring about meaningful changes to reduce gun violence so long as the american people do not give up on it. >> i have more hope now than i ever did. the people congress represents our demanding and louder voices and in more organized ways that they act on this. that is only growing. at some point, yes. >> to watch all of the winning videos and to learn more about our competition, though to and click on student cam. on ourur comment facebook page or tweet us. >> the vermont senate passed a bill last week that would make it the first state to enact mandatory labeling of foods made with genetically modified organisms.
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tomorrow, we will bring you a debate on gm owes. -- gmo's. it starts at 8:00 eastern on c-span. here is part of the discussion. of all of the independent scientist i have interviewed around the world, whether they are against it or for it, they all agreed it was released long before the science was ready. economic interests and political interests. the process itself, i do not agree, is irrelevant because the process of genetic engineering causes massive collateral damage. , farore than conventional more than conventional breeding and they do not evaluate it. scientist found a gene that was normally silent was switched on.
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it produces an allergen. you may have an allergic reaction from eating the corn that is genetically engineered. the process of genetic engineering created a switch on of that dormant gene. organizations, national academy of sciences, world health organizations. are all of these part of the conspiracy? if that is not enough for you, here are a bunch of other organizations. not organizations with some scientific sounding names. these are real medical and protective organizations. in europe, and australia, all epa, whichrld, the
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we pay attention to when it comes to global warming. they say, would not pose a reasonable risk to human health and the environment. i can come up with dozens of these. the australia and new zealand food safety group. is this reasonable that something that is an extraordinary poison, this is just fear mongering. although these organizations are ignoring it? >> you can watch the entire debate tomorrow at 8:00 eastern on c-span. >> he talks about her childhood and her career, including her time on the high court. she is introduced by robert kassman.
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>> i wish to express my deepest appreciation to justice sonia sotomayor or for joining us this afternoon. it is an honor and a privilege for us to have you here at georgetown and i know i speak for everyone in this room. thank chief like to the u.s.ert katzman of court of appeals of the second circuit for being with us this afternoon and for all of his work to make the symposium
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possible. i look forward to introducing him to you in a few moments. associatethank professor at our law center for moderating our discussion today and to michael bailey, the chair of our government department. and to each of you, thank you. thank you for joining us for this very special event. this is going to get good. i do a lot of these so i can tell you that this will be fun. the bernstein symposium was -- his workemory of in the areas of regulation and administrative reform continues to influence scholars today.
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he served as the founding dean of the woodrow wilson school of international affairs at princeton. he served as president of brandeis. it is a privilege for us to host this symposium in his honor and to provide a forum for ongoing discussion with scholars, policymakers, and students on the challenges and opportunities confronting our institutions. we have been honored to welcome vice president al gore, the late others to our campus as part of this symposium and we are grateful for the many insights they have shared with us. tonight, we have the privilege of welcoming justice sonia sotomayor or and hearing her to on a life in the law. for over three decades, she has
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served our country through her work as a prosecutor, litigator, and judge. to introduce her, i wish to introduce chief judge robert katzman of the u.s. court of appeals for the second circuit. president clinton appointed him to the federal bench in 1999. he began his service as chief judge on september 1, 2013. valued member of our community, having taught on campus and a professor of law and public policy. he is a member of the board of visitors at our law center and is one of the founders of this symposium, which he continues to oversee and organize. he chairs the u.s. judicial conference committee on the judicial branch. before his appointment, he was a fellow of the governmental
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studies program at the brookings institution. he served as president of the institute and taught classes at the universities of oregon and ucla. an awardhe received from the american political science association. bob, we are so honored to welcome you back to campus this afternoon. thank you for your leadership and your generosity and your sustained commitment to our community. . [applause] >> thank you. good afternoon, everyone. thank you, president, for your extremely kind remarks. it's always great to be back at georgetown and to have a chance to see you and my many colleagues.
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many here this afternoon stirs the mystic cords of memory. it's a very personal experience. thinking back some two decades ago when the bernstein lecture was launched with vice president gore and continued with so many luminaries. i knew bernstein very well. he really was one of two people who was responsible for my joining the faculty. before we get to the main event, i'm going to speak to you very briefly about three people -- marver bernstein, sonia sotomayor, and eloise pasachoff. my friend marver bernstein admired individuals of
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professional excellence, committed to public service, of high moral character, and striving to reach beyond their seaming grasp until they attain their aspirations no matter the difficulties. marver bernstein would have loved sonia sotomayor. you students here at georgetown may primarily know of justice sotomayor as a trail-blazing supreme court justice that she is. upon her nomination to the supreme court, the third woman ever nominated, the first latina, her name and fame skyrocketed so that to this day she can't walk down a street with someone, without someone, a cab driver, a bus driver, anyone, coming up to her and telling how inspiring her life story is, what she means to that
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person, to that family. i've seen it happen every single time since we've gone out since her appointment. she is accessible to everyone. indeed, she is the people's justice. people of all youths feel a connection with her. those who must struggle every day, often people of color, feel that their dreams can be realized because of her. the warmth and respect given to my friend is palpable. sonia, regardless of what is going on in her life, is always friendly, takes a photo with the person who comes up to her. she gives it her all to everyone 24/7, 365 days a year. who is she? who is sonia sotomayor? i remember sonia sotomayor in law school. she stood out for a number of reasons. she was brilliant, principled, hard-working, determined, caring about others, generous and full
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of life. after law school we lived in different cities had different jobs. and this being before e-mail and internet lost touch. but our paths crossed again when she was considered for judicial appointment to the southern district of new york by president clinton and senator moynihan. i can well remember saying to senator moynihan when he said, "who is sonia sotomayor?" , and i said, "well, she's brilliant, principled, hard-working, determined, caring about others, generous, full of life, and will make an outstanding judge on the district court. and beyond." i joined the 2nd circuit in 1999. she was on it beginning in 1998. we fast became close colleagues.
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on the second circuit if asked how would i describe her, i would say, well, brilliant, principled, hard-working, determined, caring about others, generous and full of life. and now almost five years on the supreme court i would say pretty much the same. as someone very proud to call sonia a close friend, i can personally attest to her extraordinary prowess and excellence on the bench. she is a judge's judge, a lawyer's lawyer. no one loves the law, its structure, its history, its language more than she does. taking apart an argument, pulling apart the pieces, analyzing the logic, tracing the precedent, connecting the case of the constitution, relating the issues to history and today's world, satisfy her intellectually and i think emotionally. she loves what she does. no one on the bench is more prepared than she is for oral
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argument. no one more eager than she is to explore what is going on on a case in the effort to get it right, to get that decision right. thinking about sonia sotomayor, it is not just her professional dedication and excellence i admire. it is also her incredible generosity as a friend to so many. she is a friend, as i've said, for all seasons, in good times and bad. i also admire her ability to live a full life, to incorporate life's great pleasures be it travel, dance, restaurants, an expansive social life. now, whether you're interested in law or not, the justice history of her life can't help but interest you. each of you here today is the beneficiary, will be the beneficiary, of an extraordinary gift. the justice is my beloved world, extraordinarily autographed by her for each of you.
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think about that. 1,000 copies autographed by a busy supreme court justice. [applause] by the way, i know you're going to love that book so much. it's free to you, but you're going to go out and buy some more copies. [laughter] it's available in paperback for your siblings, your friends, your cousins. i fully expect that of each of you. "my beloved world" is a book for the ages, attesting to the extraordinary life, an industrious life, of a highly accomplished and truly accomplished cosmopolitan lawyer and judge. the world inspires us, gives hope to dream, to overcome obstacles to not give up, to realize the potential that is within each of us no matter our life circumstance.
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no wonder "my beloved world" within days of being published was ranked number one on "the new york times" bestseller where it lived for weeks and weeks. for us, her readers, "my beloved world" is now our beloved world. and for many reasons, as we will explore, this compellingly readable, multi-layered memoir about an important judge is already an american classic. justice sotomayor and i share in common a former clerk, eloise pasakoff, now a distinguished professor of law at georgetown university law center. i first met eloise nearly a decade ago. she was not only an amazing law clerk with a penetrating mind, sharp analytical skills, and mature judgment. she was and is a wonderfully giving person.
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her career has been nothing short of spectacular, few beta kappa from harvard, mpa from kennedy school of government, harvard law school. she was in 2012, the steven s. goldberg awardee for distinguished scholarship and education law, already a beloved teacher. her teaching and research interests include education, social welfare law and policy, administrative law, governance, and regulation. i predict that if she's not a dean or a university president or a judge, who knows, the sky's the limit. she's really extraordinary. so when thinking about this evening, eloise pasachoff immediately came to mind. it is now my great honor and privilege to present in conversation the extraordinary eloise pasachoff and my friend
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and my sister, the truly extraordinary associate justice sonia sotomayor. [applause] >> well, thank you, judge, for that incredibly generous introduction. hello, justice sotomayor. >> hello, eloise. >> it is such a pleasure to be with you here today. >> i always love having you back. i don't think he mentioned that she was my law clerk my first year as a supreme court justice. that's what we share in common, but we share a whole lot of other things in common. when he called me sister, i called him my brother. and you can see why.
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no one could have a more loyal and supportive friend than bobcatsman. and i joke with him all the time that there is a protocol in the federal system. you get to be chief judge by seniority. and i was appointed before bob. and in the normal course of things, i would have been chief judge first and he would have followed me. so to speed up his appointment, he managed to get me appointed to the supreme court. [laughter] >> so i actually wanted to start by talking with you a little bit about your first day on the supreme court, which i was privileged to watch as one of the law clerks your first year. so just to set the scene a little, the senate confirmed you on a thursday. i recall i think you were sworn in over the weekend.
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>> mm-hmm. >> and monday morning, 9:00 a.m., there you showed up for work. >> i did. but actually, it was earlier because i showed up and went to the gym first. >> oh, well. [laughter] as judge katzmann says, she lives a full life. has a good set of priorities. >> and i went to the gym, and i came back. and sitting in the outer office talking to the law clerks was justice stevens who became a dear and very close friend in the year i served with him. we went into the office. he welcomed me to the court. and i said to him, "i had just asked the security guards that morning if you were in the courthouse and they told me you hadn't arrived yet" he said, "i wanted to beat you to the office." so we're talking, and in walks sandra day o'connor. now, you have to understand, from the moment i had been nominated by the president on memorial day in that may,
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something happened to me where i had an outer body experience. for a year and a half it seemed to me as if i was watching myself go through these incredible things that were happening around me. it was almost as if i had to disengage from my emotions or i would become so overwhelmed that i would be ineffective. and this was yet again another one of those continuing moments where two icons of mine in the law walked in to say hello to me. that was the start of my morning. as you must understand, it is breathtaking. i lived for a year and a half hoping nobody woke me up from my
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dream, that nobody would pinch me and that i would wake up and think this was just a fantasy. but that was the start of my day. >> what a start. >> yeah. >> so i wanted to ask you about one of my recollections of that first day as well. in addition to meeting all of the other justices who were in the building, you also made a point of going around and meeting all of the elevator operators. we went to the cafeteria, and you made a point of meeting the workers. >> we had lunch. >> we did have lunch. >> are you going to tell them they made me chair -- >> they made her chair of the cafeteria committee. she does important work. >> yeah. and the following july "the washington post" did an evaluation of the government cafeterias in the city. and the supreme court cafeteria got an f. [laughter] >> i think it would have gotten an f-minus beforehand. >> at any rate, the chief sends me a letter the next day because elana kagan had been nominated.
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he said, sonia, you're fired. i wrote back and said, "this was according to plan." [laughter] at any rate, yes, we did do that that day. i was overwhelmed by the building, by the way. >> it is a beautiful building. >> for those of you who are coming to this university, if you don't take the time to come to the supreme court and take a tour, you're doing yourself a big disfavor. it is not only a beautiful building. it's an impressive historic building. and our tours will teach you so much about the law and about the constitution and about our seriousness as justices concerning the role we play in protecting the constitution. so i encourage everybody. i know how busy you can be as students. i was one of them. i did very little exploring of the community i lived in, but it is worthwhile to take advantage of coming to the court one day.
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it's important. >> one of the things i took from your meeting with the justices, from meeting with the elevator operators and the folks in the cafeteria is that in addition to the majesty of the law, in the ways you've just spoken of, that the law is a human institution and that relationships matter. >> well, one of the things that i became struck with my very first day and it continued and has continued to this day is how many employees in the supreme court have been there either since the beginning of their careers or for decades. one of them that day came to visit me, the head of our historical society. he said to me, "justice, i love this institution. and because i love this institution i will be your friend forever and i will guard you and your reputation and the
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court's reputation with my own life." that attitude sort of comes through the building. but what you're asking is something a little bit different. i very much understand that in one succeeds by themselves. i often hear some people say, "i made it on my own, nobody helped me." and i keep thinking inside of me that's just not true. it can't be and isn't true of anybody because whether you run a business or you're in an office or you're a supreme court justice, you've got people working around you to support your effort. and if you don't take the time to recognize that, then you're forgetting that basic truth. we don't work alone. you have to be grateful to those
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who help you. and that's in part what my book was about, was to talk to people about looking around their lives and recognizing those who have participated in reaching where they are. >> let's talk a little bit about that more. there's a real theme in the book about the role of mentors and the role of being open to finding mentors, working with mentors, but also about the role of taking ownership of your own learning and seeking opportunities to learn out. there's a wonderful story in the book about how you sought out one of your 5th grade classmates to ask her how to study. i wonder if you could tell us -- well, tell us that story. it's a great story. then maybe tell us a little bit about how you see these themes of working with mentors and taking charge of your own learning at the same time maybe in a way that would be relevant for the folks in the audience.
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>> you'll learn in the book that i started out in grammar school as a not very good student. i attribute a great deal of that to the fact that i had started my life learning spanish before english. and it wasn't until i got to school that i actually began to be taught english. so rather four rocky years of school of not quite understanding what was happening around me. and obviously my grades reflected that. then my dad dies, and we had a prolonged period of time in which my mom was depressed. i fled to reading to be able to escape the sadness in my home. that may, in some ways, have saved my life because it gave me a window of another world. i tell kids all the time reading is your passport to the universe.
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you can visit anyplace, not only in the world but in the entire universe, just through books. now, for most of you, you're doing it through television and the internet, but there's still something very special and magical about using words in books to paint pictures in your head. that's where i think creative talent comes from. so it was real important when i was writing my book to paint pictures of my world with words. and that's what i tried to do. i hope i've succeeded. i think i have. what i understood in that 5th grade class was -- i do have a competitive nature. i say in the book that mostly
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grade class was -- i do have a it's competition with myself, but i had a 5th grade teacher who did something a lot of teachers don't do now, which is she would give you a gold star every time you did well on an assignment. and i wanted to collect those and i wanted to collect those gold stars. but i didn't know how to study. so i was trying to figure it out, and i couldn't because if i had known how to do it, i would have done it. ok? [laughter] what i realized -- in part it came intuitively, but i understood that there was something i was doing wrong or not doing right, as the case may be. and that there were other kids who knew how to do it. so i went to my friend, donna -- she's still a friend now -- and said to her, "how do you study?" i think she was a little shocked and looked at me and said, "you don't know how to study?"


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