Skip to main content

tv   Key Capitol Hill Hearings  CSPAN  August 21, 2014 1:30am-3:31am EDT

1:30 am
to believe there is something magical or ineffable about the human intuitive ability. i do not think it comes from any soul that we have. it comes from this really weird computer between our ears. not better in every domain and the digital stuff is getting better all the time. >> now we are interacting with machines. the chess example -- why don't you describe why humans working with machines are better at chess? >> chess is a wonderful thing to look at. -- it encapsulates between intelligence.
1:31 am
there are great quotes from now the cost talking about these mystical chess grandmaster's. once computers got better, we looked in the rearview window and said, this is just pattern matching. i had the chance to talk to gary and he was the world chess champion. between intelligence. there are great quotes from now when he first became world champion, he played 32 simultaneous matches against the best chess playing computers and he won 32-0. 10 years later, ibm beat him in a pretty close match and now it is not even close. they asked how he would prepare for a match against a computer and he said, i would so head to head is completely boring. the machines have raced ahead except when we are able to combine human ability and digital ability and play these freestyle tournaments where any team comes together. and i get optimistic as a person again because it turns out that the right team will beat a grand master or a chess
1:32 am
supercomputer or a grand master with a supercomputer. the right team is fairly geeky people who are both chess geeks and computer search and algorithm geeks and they combine what they can do versus what their machines can do and you beat everybody. >> what is the grand master bringing to the table? >> cass prove talks about it as the ability to generate a new idea. which seems weird to me. because the computers can justity rate through so many more ideas than we can these days. there is something especially in that portion of a chess game and i don't play nearly well enough to know this in detail but middle of the chess game when things are wide open, our weird computers can do a better job at seeing a for real opportunity still than the digital stuff can. through some pretty -- i won't say magical but some pretty wild process. >> will computers ever write columns? [laughter] i should say that, thinking of some of my fellow columnists and maybe they already do.
1:33 am
>> yeah. they clearly already do. >> not "the new york times." but the earnings announcements for corporate websites. for corporations that appear on the forbes website are written by an algorithm. that's just pretty run-of-the-mill journalism and here's a body of facts. right a pros narrative on top of that we can absolutely do that and nobody can tell the difference if the byline didn't say narrative science rather than a person's name on it. always a good idea to flatter your interviewer but what you and your colleagues do at the times i don't think it's anywhere close to being automated. i still have never seen a piece of technology that could awaken any kind of deeper response in me or another human. one thing i've learned, though, the mantra that i keep repeating is i try to figure out what technology can and can't do. the mantra is never say never. >> you're around a lot of young people at m.i.t. and they're preparing for workplace with a much heavier technological footprint. >> yeah. >> how do you tell them to
1:34 am
prepare for that given they won't know exactly what the technology is but they know it will be pretty big? >> i don't worry too much about the kids at m.i.t. mark andreesen has a great quote about this. in the future there are going to be two kinds of jobs. the jobs that tell computers what to do and the jobs that are told by computers what to do. only one of those categories is going to be a desirable well paid good job to have. the m.i.t. students are overwhelmingly going to be in that first category. what i worry about are the people who are currently in that middle that is populated by human beings right now. if andreesen's vision is right and i kind of think it is, that that middle is going to be hollowed out even more than it is now. and that is what keeps me up at night. >> ok. so let's get back to that and how journalism works. if i wanted to write a piece ripping you i would take a sentence, i don't really worry about kids at m.i.t. says m.i.t. professor. that wosh the only quote you would get out of this. >> if that's the worst thing i say i would be really happy with that. i don't know how many of us
1:35 am
shed tears for the poor students of m.i.t. and their job prospects. >> they do pay you. but let's talk about this core issue that you hear from everybody else but not so much from your book. and that is that technology ust is going to hollow out employment and when facebook bought what's app and i don't know what they paid but something on the order of $300 million or $400 million per employee. and you can generate a whole lot of value or at least prospective value with very few people. >> and we do try to talk about this in the book. we talk about the two main economic consequences of this astonishing tech progress that we're seeing. the first is the good news. abundance and bounty and just more stuff. the second, though, is exactly what you point out. we call it spread. as our overall lable for it. the fact that the what's app team is way up at the top of any income or wealth distribution now. there are a lot of people at
1:36 am
the bottom and exactly as you say, that traditional large stable prosperous american middle class is pretty clear that since about 1980, that middle class has been getting hollowed out. and i don't think it's a coincidence that 1980 kind of started the p.c. era. and this great democratization of technology. it's kind of an irony that as we have put -- i believe the most powerful tools for personal expression and individualality and entrepreneurship in the hands of people since about 1980, what we're seeing instead is an increase in spread and inequality in some things that we care about. >> is that just baked into the cake of technology? >> yes and no. i think that technology does have that superstrong tendency. but the reason i'm trying to hedge a little bit is i don't want that to be any kind of reason or excuse to throw up our hands and say well that's just how it's going to go. good luck to everybody. you know, that's -- that's a terrible idea for all kind of reasons. the last sentence in our book
1:37 am
is that technology is not destiny. we get to shape our destiny. i think there are these strong forces. but to me, that argues more strongly for policy interventions and hard thinking and all the things we as a society can do to -- to change the equation a little bit. >> what's possibly big enough -- you're talking about some fundamental forces that seem on the driving of inequality scales are bigger than raising the minimum wage on the policy scale. >> and i don't know how prominently that particular intervention should be featured. my -- the mantra i repeat about what the right playbook is going forward is innovation, more innovation and more inclusiveness in our economy. the thing we have to do, there's a great exchange, i forget exactly who said it but the quote was gentlemen, we've run out of money. it's time to start thinking. i think the equivalent for this era is it's time to start innovating more than -- even more than we are. the only thing that's going to
1:38 am
get us out of our problems. we can't tax our way out of it and can't spend our way out of it. all we can do is grow and innovate our way out of it. however, some of our current path of innovation is leaving a lot of people behind. which is why the other half of my mantra these days is inclusiveness. the data are emerging and the research is pretty wild. social mobility in this country is a lot lower than we think. and it's been a lot lower for quite a long time. so this american dream, you and i probably still believe in it and we carry it around. it's been a tougher sell these days. so finding ways to actually restore that, is really important. the first winner of the nobel prize in economics had a beautiful way to frame it. he said said inequality is a race between technology and education. technology tends to exacerbate it and education is the great moderating force. let's not forget that. >> let's talk about some of the technological effects within industries or within the places where a lot of us work. so in my work area, the
1:39 am
internet has had this weird effect that i think was unpredicted and used to be as a reporter go to a press conference and write 800 words and summarizing what happened. >> yep. >> that's basically gone. and i call those people the middle distance runners. >> yeah. >> and the people who are really good are the sprinters who are tweeting out a zillion things a day. >> yep. >> or what i hope i am, is the conceptual people. >> yep. >> and it's actually harder to find con isn'tual people, surprisingly harder to find people who can do that so distance people and sprinters but no middle distance in my field. what are other fields where you see weird effects from technological -- >> that pattern that you identified is to my eye sincere a showing of the hollowing out we've seen over and over. the profession of law is in some trouble these days. there are several reasons for that and turning out more law school graduates than we need. but also that middle distance of law is this work of reading a whole box full of documents and looking for patterns as
1:40 am
part after discovery process or something. you hit a button. you get that right now. a very, very good lawyer, the equivalent of a "new york times" columnist for a lawyer is somebody who can prevent the problem up front or negotiate through a complex deal. i don't see that getting automated any time. but there are some pretty low level people and those middle distance runners are going away. i wouldn't be surprised to see the same thing happen in medicine. i.b.m. did not build watson just to win the game of jeopardy. they didn't unplug watson after it won on jeopardy. they sent watson to medical school. i personally am convinced that if watson is not already the world's best medical diagnose stick it will be very quickly. a lot of doctors in the middle. >> did you read michael lewis' book "flash boys"? >> i haven't read "flash boyes." >> and using technology to rig the game. and most people hit the buy buten and assume it's
1:41 am
automatically leads to a sale. but there's a lot of inner steps in there they don't even think about. >> yeah. >> are there other examples of that who are -- i mean, possibilities for corruption from people who just understand the technology better or -- >> yeah. there are tons of them. and entrepreneurship and innovation are kind of unguided processes. in general, i think they take us in the right direction and into a better place. but some of it clearly goes in to -- if not outright criminal activity, then counterproductive ones or exploiting these little holes that don't make us overall better off. they just make the innovator a lot better off. that's going to be part of the process going forward. as well. but i do still think that on balance, technology-based innovation takes us into a better place. >> and what struck me about that book and also your book is the people who -- they were pushing a button to buy. and then when it hit the screen, the shares or whatever they were trying to buy were no longer there. they were seeing on the screen was not reflecting the real market. and they couldn't figure it out. and most people just say oh,
1:42 am
that's a mystery and i can't figure it out. but a very few people were obsessive and spent -- they got obsessed with the problem. and they behaved in market irrational ways because they have this fanatical desire to understand what was going on and you have some of that as well. that this obsessive ability does have -- it's a unique human trait and character. >> the positive label we give to that is a geek. in my world of the tech industry, geek is a term of high, high praise. nerd is a little bit more ambiguous. but geek is really just the highest thing you can be called. and they've got that character, that they're just -- they're just tenacious about a problem. they don't ever let it go. when they have something like an answer to it, what's amazing these days is the technology gives you such leverage if you answer it a tiny bit better. you can propagate that answer and capture a great big huming market. so technology, not just geeks like to play with technology. it's that technology amplifies
1:43 am
geekry in a way that i've never seen before. >> and does it defeat social skills? does it minimize -- what other skills are become amplified? >> i know you're a fan of st. augustin. he has the best insight about what's going on with our screens. which are unbelievably addictive, right? our friends are there. there are these bright jewel-colored things they fit into our pockets. they're accessible in two seconds. and when the person we're talking to is boring we've got this whole world right here. it's a dire temptation. and i give in to it way too often. i'm going to get the augustine quote totally wrong but he says look what the world does. is put these temptations in front of us all the time. our job as -- to use your words from last night, as more mature, more reflective or deeper people, is to be aware of that. and then to fight that battle against ourselves to try to become a better or more reflective person. in part by not -- not reaching for the darn phone every five
1:44 am
seconds. i still like the phone. i still want it. but we need to be able to have a real conversation. >> you think it cuts our attention span? >> yeah, probably. but i have trouble believing that we could design any technology better at rotting our brains than network television. [laughter] and we survived that, right? >> hbo guys. >> no, he's cable. it's cool. but my generation survived that, just that passive, completely nonengaging experience. at least what we're doing now is so much more interactive. i do have faith that even with these -- these problem areas, they're going to make our brains better instead of worse. >> my last question, i tend to say that we tend to underestimate the pace of technological change and overestimate the pace of behavioral change. and so we have these neat gizmos but still sitting here in this room. >> yeah. >> will this go away? >> let's hope not.
1:45 am
i interact on technology a ton. and i come across interesting ideas and interesting people on twitter, on my blogs. in the online world. there is no substitute. and as a natural introvert, i would kind of much rather not have to go to conferences and talk with other human beings. but part of the struggle that where i've learned is that's actually where you get a spark, a new idea, something real and kind of cool in your life. is not just by staring at the screen or just doing that. but getting out there into the real world. i think it would be dire, dire, if that went away. >> we are out of time. i will say to wrap up, you are a well disguised introvert. president obama speaks about the murder of james foley by members of the terrorist group isis. then remarks by attorney general eric holder in ferguson, missouri.
1:46 am
later, a role at state and local police in managing civil disturbances. on the next "washington journal," elizabeth kneebone from the brookings institution on poverty and how it relates to current events. later, we continue our look at president johnson's vision for a great society with the discussion on the air quality act of 1967. d, aguests are jeff holmstea former epa administrator, and robin juni, a professor. "washington journal" live every morning at 7:00 a.m. eastern on c-span. texas governor rick perry is an washington, d.c., thursday for a discussion on the new politics of immigration. we will be live at this event hosted by the heritage foundation and the national
1:47 am
journal starting at 11:00 a.m. eastern here on c-span. >> this week on "washington journal," we are focusing on president lyndon johnson's vision for a great society and its impact today. you can send us an e-mail, tweet , and join the conversation on ,> tomorrow night on c-span greenpeace founder and humans being the cause of global warming. here's a preview. even they do not subscribe to the belief that extreme weather events are tied to global warming whether it is human-caused or not.
1:48 am
they say there is no evidence of an increase in extreme weather events related to the warming that has occurred. gore,t, bill mcgibbon, al they perpetuate the idea that every extreme weather event is because of us. this is why we will never be able to predict the future of aboutimate other than three days, as john coleman who is coming up soon, will tell you he knows. it is because of clouds. water, the most important greenhouse gas, the only that and occurs liquid and -- this phases in the atmosphere. the liquid and gaseous phase -- water vapor -- behave in completely different ways with regards to solar energy. clouds can reflect the sun back. they can hold the heat and depending on where they are, how thick they are. what computer model can predict
1:49 am
the pattern of clouds in the world? it's impossible. that is why we will never be able to predict the future of climate and clouds are the wildcard. many people believe as the earth warms and more water evaporates off the see that it will be cloudier, wetter, and it will reflect more sunlight back. there will be a negative the effects oft co2 and that is just as plausible hypothesis as the "fry in hell" hypothesis we keep getting from the alarmists. institute, heartland a look at both sides of the debate followed by the testimony of former epa administrators in front of a senate environment subcommittee tuesday night at 8:00 p.m. eastern on c-span. president obama spoke thursday about the beheading of journalist james foley from members of the terrorist group
1:50 am
isis. mr. foley was taken hostage two years ago while covering the civil war in syria. here's a look. >> good afternoon, everybody. today, the entire world is appalled by the brutal murder of jim foley. jim was a journalist, a son, a brother, and a friend. he reported from difficult and dangerous places, bearing witness from a world away. he was taken hostage nearly two years ago in syria and he was courageously reporting on the conflict there. jim was taken from us. he was 40 years old, one of five siblings, the son of a mom and
1:51 am
dad who worked tirelessly for his release. earlier today, i spoke with them and told them we are heartbroken by his loss. jim foley's life stands in stark contrast to his killers. let's be clear about isil. they have rampaged across cities and villages killing innocent, unarmed civilians in cowardly acts of violence. they abduct women and children, subjecting them to torture and rape, killing sunni and shia by the thousands. they target christians and religious minorities, arriving them from their homes, murdering
1:52 am
them when they can for no other reason than they practice a different religion. they declare their ambition to commit genocide against an ancient people. so isil speaks for no religion. no just god would stand for what they did yesterday and what they do every single day. isil has no ideology or any value for human beings. their ideology is bankrupt. they may claim out of expediency that they are at war with the united states or the west. the fact is they terrorize their neighbors and offer them nothing than endless slavery to their empty vision. the collapse of any definition
1:53 am
of civilized behavior. people like this ultimately fail. they fail because the future is won by those who build and not destroy. the world is shaped by people like jim foley and the overwhelming majority of humanity is appalled by those who killed him. the united states of america will continue to do what we must do to protect our people. we will be vigilant and we will be relentless. when people harm americans anywhere, we do what is necessary to see justice is done and we act against isil standing alongside others. the people of iraq who have taken the war to isil must continue to come together to expel these terrorists from their communities. the people of syria, the story that jim foley told, do not deserve to live under the shadow of a tyrant or terrorists.
1:54 am
from governments and peoples across the middle east, there has to be a common effort to extract this cancer so that it does not spread. there has to be a clear rejection of these kinds of i at -- kind of nihilistic ideologies. a group like isil has no place in the 21st century. friends and allies around the world, we share a common security and a common set of values that are rooted in the opposite of what we saw yesterday.
1:55 am
and we will continue to confront this hateful terrorism and read lace it with a sense of -- and replace it with a sense of hope and stability. that is what jim foley stood for. a man who lived his work, who courageously told the story of his fellow human beings, who was like and loved by friends and family. all of us mourn his loss. we keep in our prayers those other americans who are separated from their families. we will do everything we can to protect our people and the timeless values that we stand for. may god bless and keep jim's memory and may god bless the united states of america. [captions copyright national cable satellite corp. 2014] [captioning performed by national captioning institute] eric holdergeneral traveled to ferguson, missouri, at the request of the president. he's expected to oversee the federal investigation into the shooting of unarmed teenager michael brown by a local police officer. at attorney general stopped a diner in ferguson.
1:56 am
he was greeted by diners and met with missouri highway police captain johnson. he was expected to meet with the family of michael brown later in the day. >> thanks for coming. >> thanks for having us. are you the money lady? [laughter] >> how are you? nice to see you.
1:57 am
>> we appreciate you coming. how are you doing? >> this is affecting a lot of the municipalities, a lot of .conomic development we met with the mayor yesterday and about 16 or 17 of the mayors to helprt of trying out. come are going to have to together. a lot of communities have come together to solve this problem. it is really region-wide. >> it is regional. we don't want the world to know us for what's going on here. we want to have justice for everybody involved.
1:58 am
we have a lot of development that has started. this is bringing the world headquarters here. there are a lot of good things that are going on in this community. we kind of need to stick together and get this solved. now, eat some chicken wings. [laughter] the meatloaf was good, too. let me just say a couple words about the federal investigation that we have underway. we have brought to this area very experienced prosecutors. we have very experienced agents who are handling this matter and doing so i think in a fine way. i will be briefed on more of the details from the investigation and will be kept up-to-date. there was nothing that will replace coming to the office and
1:59 am
handling the matter, being able to look in the face the people who, at this point, are very ably handling this investigation. differs fromtion what the state is doing. we are looking for violations of federal criminal civil rights statutes, different from the local investigation. a substantialt number of people here, a number of agents, who have done a great job and the canvassing they did over the past weekend. leads soinue to follow we can do a thorough and fair job in making a determination on what happened august 9. i'm confident that through the ability of these people we will make a determination about whether or not any federal statutes have in fact been violated. the hope also is through the trip i'm making out here today and by stressing the importance of in the way in which this
2:00 am
investigation is going but hopefully we will have a calming influence on the area. people know that a federal, pharaoh investigation is being done, being -- a confidence that the appropriate things are being done by their federal government. are doing something different than that which the prosecutors are doing. but nevertheless, i think that what we are doing hopefully will positive impact. >> okay. >> thank you, folks. >> thank you. of the rolescussion state and local police play in civil disturbances. the one in ferguson, missouri. o'donnell was a guest on for 45ton journal minutes. [captions copyright national cable satellite corp. 2014] >> joining us is eugene
2:01 am
o'donnell. a former police officer for the new york police department 1984.g from 1982 to mr. o'donnell what is the role of the police force in ferguson, missouri? >> well, at this particular juncture it is to troy to engage the community and hopefully with community engagement and it is occurring atat is least on some level pestrana and maintained -- peace and order can be maintained. small number of people are create havocre to in the town can be given out and take noon custody and then, of long-term issues. many are political issues. eve what is the role of the national what is the role of the national
2:02 am
>> what is the role of the national guard in missouri? assistance and be there to assist with perimeters. obviously this is all being done by the seat of the pants or with not a tremendous amount of time to plan this. is all contingency planning for the in thely the proper focus remains on convincing the community this whatever damage has been done that there is a need for justice done but that only -- there can only be bad result violence and damage and if property is damaged, businesses there, that could have an impact that would go on for decades. about all the different law enforcement presence on the ground in ferguson, missouri. you've got county police, you got the highway patrol. who are all of these -- what are all these police forces and how do they work together?
2:03 am
>> we have 18,000 police departments in the country. we got state police, local police, county police, so it's all those folks coming together. that raises questions about chain of command, and we talk about crowd control, training is an issue, whether they've had expertise in doing it. that's usually the best indicator. you have to plan for every contingency. you have to plan for the long term, but you also have to actively engage because we saw this, we've seen it already in ferguson, we saw it at occupy wall street, the people that occupied wall street refused to allow, for the most part, people come in bent on hurting people. host: you got tomorrow as jackson, the ferguson police chief, captain ronald johnson, who is the missouri highway patrol. what is the chain of command? >> i'm not clear what the chain of command is. ultimately these are political issues.
2:04 am
the governor inserted himself, properly. so there's a mix of police decisions being made and political decisions, and chain of command is a crucial question. as to what the division of labor is, and who can give orders, and we don't have a whole lot of experience, fortunately, in incorporating the national guard in in peacetime, so it's a process of learning and getting the balance right here is difficult. you can probably criticize the response at every level and be right, because it's difficult, the first night there was criticism of overreaction. that followed in short order with criticism of under reaction, where merchants were saying they felt unprotected. two best police departments in the country have both been tarnished by their own issues. lapd for not acting quick enough in mcarthur park, nypd in 2004
2:05 am
at the republican convention for being too aggressive. host: are you saying that you can't distinguish the chain of command in ferguson, missouri, or in general, is there just not a clear chain of command? >> in general, you're talking about a larger issue than a local police department can deal with. you're bringing in outside chain of command and how well prepared an organization is on paper is one issue and how well those plans come together in reality is another question. so some areas of the country there's probably very good coordination around civil disorder, some communities much less so. and all these plans are really only to be evaluated when you have to stand them up and make them work in realtime, and there is no victory lapse here, there is no winners here. you have to work on this minute to minute. you can have a good day followed by a bad day. and this takes a sustained focus
2:06 am
and people get tired, and including the leadership, and you have to account for that. the longer it goes on, the more weary people are libel to become and you have to figure out how to bring fresh people in while maintaining, you know, command structure. host: what is the training like for the police force to deal with what we're seeing in ferguson, missouri, the aftermath of the shooting death of michael brown? >> it would vary greatly in this country. every department almost would have their own unique brand of training. some would be fairly sophisticated, some would be rudimentary, almost all would be adequate. we don't do a great job training the police in america. again, partially because we really don't want to come to grips with what they do, which is use force on people, and it's obviously a lot of other things, but the core competency that they get called on to do is use force in a brutal system that we
2:07 am
own, and that we don't want to come to grips with that. a lot of police training will be -- will be basic, and in some cases, you know, nonexistent essential i had, and will not be hands on, will not give people particular skills, and even where they do the history of this is when you actually have to have a response that's when you -- that's when you can make a better assessment of how well people are trained. host: we're talking with eugene o'donnell a former new york police department officer and lecturer at john j. college of criminal justice joining us this morning for a discussion about the role of police in civil disturbances. there has been a lot of discussion about the militarization of police across this country. is the training available for the equipment that these police officers are receiving? >> well, there's real serious
2:08 am
concerns about mill terryization of police and giving weaponry and whether there's oversight that's adequate, and if you only had a couple of hundred bad police departments in the country, that would be a today limb ma and something tells me you probably did out of 18,000, so there has to be oversight. but that can't be balanced with denial about reality. i'm sitting in chicago today at this very minute, there's a hostage situation in the suburbs. you have active shooter situations. you have the incident at 911 when i was in that city, and any new yorker will remember not knowing the scope of that attack and how long it will go on for, the events in boston. we have to reckon with the reality that the police chiefs i know are not dying to get their hands on weaponry. they're really conflicted over this. they have to be ready for eventuality, and the likelihood is the overreaction, under reaction criticism. we're spending a lot of time on the overreact side.
2:09 am
there is another side about this, where police could be accused of not acting. host: let's get to phone calls. a fourth line this morning for law enforcement. (202)585-3883. barbara you're up first in connecticut, democratic caller. caller: hi. good morning. what i wanted to say is i don't quite understand why they would send in so much -- so many different -- so many different police officers. none of them seem to have too much training to be working with all of that heavy equipment. it just seems to wrong and, you know, it's like little boys, you know, so happy to put on helmets and have guns, and be on television, and they just look silly. and they're killing people and hurting people unnecessarily. they need to just not do this, just have the national guard, everybody else go, just have them, in case anything happens
2:10 am
to work along with the local -- the local police. host: all right. >> we need to take i'd iology out of this conversation. it's a pragmatic conversation, a conversation about the law and what's necessary to do. and we have had had reports of police looking heavy-handed, but at the very same there were merchants claiming police were standing down and not protecting them.
2:11 am
a rot of the issues that hangs out is our failure to come to system that we own and i just have to say i find it elected officials who are the partners of believe -- i see people running for cover and not acknowledging. system. imperfect a brutal system. a system based on force. you say that it is not working, particularly it seems us whatu a duty to tell could be done better in a practical way, not to deny the realities of what the police to deal with, which are many different challenges and an situation.nable for example, in this situation clearly there are people coming purpose of for the going head to head with the police to get on cable television for seven seconds. and to cause destruction for the people that live in the town. to reckon with that. you have t.
2:12 am
times" putl.a. together this graphic this is from the "l.a. times. eugene o'donnell, do you have thoughts on that? guest: my thought is how did this happen? how did police get this equipment? was there not a process. i have seen elected officials say they -- washington allowed this to happen. they are washington. the reasons this is happening is serious issues law enforcement is confronted with, and some of , thes to do with a broken system.
2:13 am
they are the architects -- criminal justice system. they are the architect. it is the street officers that will be blamed for these issues. we have to have owners -- ownership. the governor's statement, even the president -- the idea of pushing this down and making it a street police issued, we have a lot of fergusons in this country. we have a lot of disinvestment and denial about the situation on the ground and the any they will make this into a citizen-police interaction conversation, i find that disingenuous. host: eugene o'donnell, in your opinion, it is the lawmakers and the laws they have put on the books. >> --x --guest: absolutely. it is us.
2:14 am
in many ways we want to say we are too good to run the system that we run that involves taking people's freedom, giving police a chance to take liberty, and we have a legislation factory in every state. government, more laws, more statutes, more opportunities for police to be in conflict with the people. the triggering incident in ferguson is two young people walking in the street. many of your viewers would be surprised to learn how many states have statutes like that to get police involved. we express or to find out -- horror to find out there are bad endings when you have these conflicts here at we want to make sure -- conflicts. we want to make sure the police make it better and using force could be done in a magic way where there is not bad endings. the only way to reduce these issues is for political leadership to lead and reduce
2:15 am
the amount of conflict police are being thrust into, particularly in communities where the political leadership is so bankrupt, where people are not engaged, they are alienated, and the only services, often, are policing services. host: carterville, illinois. james. independent. caller: thank you for taking my call. on the last question of taking -- sending obama to ferguson, i say no because when it comes to race situations he has dumped fire on the situation. eric holder -- he is one of radicals. i do not think he wants to find solution and peace. host: ok, james. mr. --mr. o'donnell, do you have any thoughts on the attorney general had a day-to-day, and
2:16 am
that the department of justice will do a parallel investigation along with the police force ? i think it is a nonpartisan failure. obviously justice should be done in this case to get in, push the responsibility down, deny how many situations we have like ferguson, and get out. every party, every single person that i am aware of across the political spectrum shares responsibility for that. is there anybody even pretending to have a plan in this country for how you engage people where you have such high rates of unemployment, failed education? this is an effort to turn away c-spanas, especially the audience, who are engaged, we have to talk about the need to and civicple, engagement, have people voting,
2:17 am
have people being active. that is the root of this. elected officials seem to not want to own up to their ownership of this, and it would be perfectly acceptable for them to make as a patrol officer issue. enforcement a law official in pennsylvania. your thoughts. caller: good morning. .ood morning, mr. o'donnell i am retired from the nypd. i went on in 1962 and left as you are leaving in 1982, or 1984, when you came on. when i came on -- what is going on in ferguson is not new stuff. this has been generational. it began in the early 1960's. 1968, fergusonin or 20 situations.
2:18 am
panthers,t only black the black liberation army, a lot of different groups looking to kill cops. we have to come to grips with the racial aspect of this. you, when can i ask you were in the police force, did you have trained to deal with race issues, racial sensitivity? common we use plain sense. you treated everyone like you wanted to be treated. that was a training we received, and it was effective. host: ok. eugene o'donnell. to thewe have to come realization that it is a problem. remember in this conversation begets extremism. this is not the police are never
2:19 am
wrong or never right. this is trying to find a sensible middle ground where most people are but we do have to reckon with the fact that, you know, we have a society where the carryover in law enforcement, often is racism. i am hoping as the country gets more diverse and the younger generation comes along and people have mixed with people thoseent than themselves, edges will be muted and we can create a culture where officers themselves find it intolerant to engage in patterns of discrimination and bigotry, which would take us further along in creating law enforcement -- professional law enforcement. host: is training needed? guest: training is always needed. it is an extremely skilled job that calls for an extraordinary amounts of -- amount of capacity. you probably should have four years of training, or some such
2:20 am
youg for the actual -- if make an inventory, especially in the big cities of what a cop can do in eight hours, it is staggering, and they can't take someone's life without any due process. we really have to -- and take -- take anyone's life without due process. we have to own this. do we want to spend the money. do we want to reimagine this? extremism, there are numbers of people that just wish he did not need the police, hope away the problems, that they are an outfit imposed on us. it is a distorted vision of reality. i get the point of people are unhappy to see scenes of violence and weaponry. cell phones are making us unhappy to see what police do in our name.
2:21 am
it would be good if we took it to the next level and started initiating reforms in a nation that is so punitive and spent so much time blocking each other up. host: democratic caller. kenneth. centerville, alabama. caller: hi, how are you? host: good morning. caller: i am just an everyday joe. i am from chicago. now i reside here in alabama. i wonder if people realize that sometimes african-americans are just really tired of the police period? i have seen so many bad things in chicago. i understand they have a hard the but to strip people in streets, through people on the ground, step on people, and --ng a concerned citizen they tell the drug dealers that you called them. host: i'm sorry, ken.
2:22 am
i thought you were finished. eugene o'donnell? is a concern you hear a lot, but the only answer to democracy is to be involved, participate, said and -- sit and and disown our responsibility -- that is not an answer to anything. police are in the middle of conflicting demands all the time. we hear about brutality and overreach while at the same time in many places millions of americans, the number one complaint about police is they cannot get their attention, they cannot get them to come and take care of their issues. they have been awake for two years because of noise, and no one will engage the issue. you need to know that if you have a noise complaint, you bring the police, and if police their radioto lower and they do not do it, that is the issue for policing.
2:23 am
what say you when somebody refuses to do that? police could talk to them nicely, police could cajole them. in many cases, police could overlook it, but that is an issue where you might have to have enforcement, and are you willing to own that? do you want to have a conversation in which denial, you know, is what you want to say? this is an issue that we see a lot, where police officers do the very best they can -- not all of them, but a lot -- to get people to acquiesced to lawful authority -- to the many laws that we take -- make that are made by lawmakers, and if the theon says you are under -- policeman says you are under arrest in the person says i'm not coming, what say you? -- how policeline trained to stop a threat. in this article they say
2:24 am
shooting multiple times a day suspect is not unusual. guest: yes, because the only reason to fire a weapon is it your life hangs in the balance, for the most part, in a professional police environment. if you are in a life or death struggle what you believe you're going to die, how many shots would you fire in that circumstance? as a prosecutor, i investigated but sometimesgs, what you are worried about -- this will sound terrible -- it -- youfficult balance would be saying the officer felt he was eminently going to die and fired one shot? basic shootingy skills. they miss a lot. we really do not want to turn the police into marine snipers. they are our neighbors. they are ordinary civilian people.
2:25 am
you want to give them basic competency. police officers shoot sometimes, and when they do hit, they hit multiple times and those people are still able to kill the police. we need to say in a city like new york, where there has been recent criticism of an in custody arrest, that the record in that city and many other places is extraordinary police restraint. 35,000 police officers, perhaps as few as 50 shootings a year you aboutsaries, and every single case the person is on been brandishing a weapon. host: florida. shannon. republican caller. caller: as i was watching the leaders and everything, why taxt the police not use die s things that do not
2:26 am
wash off, so they can catch the people, and do not have to worry about every hunting them right then and there and sending police officers to their death by sending them into a mob situation like that where they would have to use live ammunition? host: ok, eugene o'donnell? more: we need to be much creative in using technology to take less risk, making situations less adversarial. people talk about the military and how it can be bad to get equipment from the military. the military is apparently spearheading nonlethal weaponry, which is at the -- should be at the top of the list. get us a weapon the police can use that will disable the person who can stand up 30 seconds later after they are in custody. it is unbelievable in this
2:27 am
high-tech society in this late year 2014 that we are still using firearms that are lethal to bring people into custody to be brought before the bar of justice. host: rick, massachusetts. independent caller. caller: good morning. difficulties i see is when police were taken out of the neighborhoods, and off the beat, where they got to know the young people -- little johnny started messing up when he was eight, the police officer could snatch him up by the year and explained to him what he was doing wrong. in my town, all the police officers, there are only two that live here. they do not know the citizenry and the citizenry does not know them. you could basically tell a police officers attitude based on their haircut -- if it is high and tight, military style, they are more apt to cause problems. it is not just the police's
2:28 am
responsibility, but the citizens responsibility. that is number one. number two, i believe that the grievance industry with some people into violence and anger based on the individual's desire to get press. two examples right off the bat -- al sharpton and jesse jackson. they are in ferguson raising all kinds of cane and hell over one tragic shooting. there is not a word being said about all the murders in chicago. i think it is individuals like those and others who are whipping up the violence in these crowds. host: ok. mr. --mr. o'donnell. guest: we need to worry about the murders in chicago, we can do both without ideology. we have a murder problem in chicago. we have to face that. legitimizing the police and building a good rapport with
2:29 am
communities will be a win-win for the country. i do not mean to say that you are extremist, but it is these extremist thoughts -- this either/or or sidekick -- real american -- side-taking. real american law enforcement pledges to do both equally. we can have a police force that is respectful and engages these issues, but it would really be helpful to us as a country if we look at the footprint of the police, which in many communities is far too big, they are over-task, and we confronted some of the issues -- for example, mental health. some of the worst issues were people have had to deal with, shootings were people die, are the direct result of abject failure of people to step up, have a reliable, -- have a reliable infrastructure. we do not want to fund it.
2:30 am
we do not want to confront it. we allow the police to be mental health providers, and we profess to be shocked when we send police officers armed with weapons -- the very worst idea you can think of, to assist people in emotional and mental health crisis. host: we are talking to eugene o'donnell, former police department official in new york a professor of criminal justice. on august 9, the day of the whating of michael brown, stands out to you about him being pulled over, from the beginning to the end, to the fatal shot of michael brown? guest: i do not alternately know how the facts will come down, so it is hard to talk about this, sort of, salad. we have not heard the officers account. i think this dynamic -- this
2:31 am
somebody dying, it gets the attention, and it should, because it is a human life, but the underlying causes i have -- the fact is been around the country. if you see the disinvestment and the despair in many communities, the alien, the 50% unemployment rate, the overaggressive criminal justice system, the stigma and humiliation that that cells to people -- a jail is always available where as investment in humans is not. i lament that this is a terrible passing of a human life, and i also have to say immediately that i predict there will be a focus on the police issues exclusively, relative to the much larger issues because we are in a country where there is no plan for fergusons and to engage those things of any
2:32 am
party. we need to take the ideology out of this. these are larger issues than taking a party. -- we need to look in the mirror because it is really about ourselves. again, we own this brutal system of ours. we do everything we can to not acknowledge that -- this system that incarcerates, this system that is based on force, and based on, essentially, a system that ends up incarcerating a lot of minority people. we need to own that. it is not the police by and large doing this in a vacuum. it is our engagement for lack thereof causing these conditions. don, youlor, michigan, on the air with eugene o'donnell. caller: thank you, c-span. thank you, greta. mr. o'donnell, i am originally from wyandotte.
2:33 am
to this day, i do not think they have ever shot or anyone has been killed by the wyandotte police. i agree with the man from massachusetts. they have to be from the city. i have police officers in my neighborhood that used to stop to talk to us as kids and police officers and said this is our neighborhood, our city. he never harassed us. officer bernie. five friends, older and younger, they became cops because they felt good about delays. one of them became a man. man.s such a good that is what it is -- not being from the city. there is no connection when you hire someone from outside of the city or another state. you have no connection with the people there. host: all right, don. eugene o'donnell?
2:34 am
guest: we have to stop police bashing across the public spectrum. it is a public service. unless you do not want to have police -- i think most recognize you have to have police. i teach in a school. many of our students will be police officers. do we want the people to go into this profession? do we want to make public service something people worthwhile? as much as i am criticizing politicians, i cringe when i hear people say all politicians are corrupt. that is just not true. we have great elected officials of conscience across the political spectrum, and regrettably, because the system is to some extent dysfunctional, you wonder how many good people in this country would run for office if it was a more functional system, and a parallel to that is i think every day we lose good people that want to be police officers
2:35 am
for the right reasons who say i'm not going to go into this job because no matter what i do i will be credit sized. particular -- criticized, and particularly because policing is overwhelmingly done in minority communities. again, let's accept ownership. why is that the case? host: eugene o'donnell, do you think it matters the very few of the police officers on the ferguson force are african-american? guest: it is better to have a representative group of people, all things being equal, but the larger question is having people that are there for the right reasons, motivated well. understand, ferguson, not to minimize the complexities, the salaries are uncompetitive relative to other places, it is hard to keep people, and that is a common phenomenon in law enforcement. you get good people, and they do not want to stay. they go to greener pastures. david.
2:36 am
california. republican caller. caller: hello. host: you're on the air. inler: i want to say back 1997 with the lapd, the bank robbery, the reason why police are more militarized now is because the lapd force was outmanned by automatic weapons, so people try to figure out why our police are looking like no terry -- it is because -- military -- it is because of that reason. now, later on, we have to figure out more and more, they are looking like militaries, right? a racial issue because it does not matter if if're black, white, asian, you are a criminal, you are a criminal, and that is the bottom line. host: eugene o'donnell, your thoughts? robbery, that bank
2:37 am
police were forced to go to gun stores in real time. fortunately we have never had something like that happen again. you do not want to take one event and blow it out of proportion. there is a danger of over-equipping police, giving them camouflage, changing the mindset. we need to realize that it is a complex issue, police a to be ready and use the events of boston where combat was done in the streets. we do not have a domestic unit. a police officer was killed in boston, i do not hear a lot of people talking about that, in the course of those events, when they minimize the risk to people. police have to be ready for contingencies that could be carried to an extreme, and there has to be local control of the police. some of these swat teams in small towns -- they really cannot be adequate -- with a
2:38 am
part-time council of two people, you cannot have adequate control. it is very nuanced. we have to get into the weeds, see where these things are needed, make our best judgments, but denial and overstatement are the enemies here to try to make rational decisions about what we should be doing in a free society. host: rick on twitter says police forming a wall against citizens was bad optics -- it fostered a them versus us mentality when cops are to protect the citizens. bob. independent caller. indiana. caller: yes, good morning. host: good morning. caller: i would like to make two points. initially, the police were not law enforcement officers. they were peace officers, and their job was to keep the peace. they moved from these officers to law enforcement officers, and that places them at a position
2:39 am
where, in support of the law, they are placed against the communities. another point that i would like to make is the refusal of law federal, state, down to local, because of camaraderie among officers to police themselves. when a swat team hits the wrong house, the first thing they do is move to protect those officers, rather -- host: bob, got your point. eugene o'donnell? that this thison sends on us from somewhere unknown, i have not seen lawmakers repealing the laws and thousands of them. yes, there are issues. sometimes a cohesive police force, well-trained, well-disciplined, with the right motives can be essential.
2:40 am
there is a problem in police culture -- lawyer culture, medical culture, or people look after each other. that is an ongoing issue that you have to confront. "usa today" had this front page story yesterday about the national guard being called up the governor there, and you were quoted as saying "it is the worst scenario." why? guest: said it shames our country because of the failure to confront the underlying issues. i was referencing the collapse of a civic society. that is what that tells you, that the alienation levels are so high and there is such a lack of political will and creativity to engage the underlying issues, we are going in the exact wrong direction, literally
2:41 am
militarizing a civic society issue. andre using the military, that 98% of this debate rages on about the actions of a patrolman, which again, the justice system will hopefully do justice. we need to look the much larger picture, and again, a much larger picture undoubtedly is going to be a trail back to ourselves. host: washington, d.c., democratic calle. caller: good morning. i agree with most of what you're guest said. the police officer in ferguson overreacted. once you saw michael brown's hands in the air, he should've stopped shooting. by understand once you start shooting your gun you can stop. but once his hands were exposed
2:42 am
he was no longer a threat. respectfully not get into that issue. o'donnell, on the facts rolling out slowly, we don't know everything yet, the grand jury is going to be formed today, and from newspaper .eports that will take weeks decisionree with that of having a grand jury, and that people don't know yet and it is not out in public and not transparent? guest: i have concerns about the grand jury. i have worked in front of a as prosecutors and they are controlled by the prosecutor's office. they send has a tough decision making process rather than own a
2:43 am
decision that is ultimately made. there will be a claim that it will be an exhaustive receding. it is not adversarial so it will not be that exhaustive. the political establishment will -- nots binding on the saying it is a bad process. we just need to be aware of its limitations. and hopefully people -- this will be explained to people. one of the things we need to know is that the lease in this country as our surrogate -- police in this country as our surrogates have a terminus menu to use force and in most places in this country it is extremely difficult to prove the on reasonable doubt that an officer is unjustified in an on-duty police shooting if there is no malice. that is not me endorsing an outcome.
2:44 am
that is the legal system in this country where we elect people to make that law and that is the law that we have of self-defense in this country, for the police. host: eugene o'donnell, i want to get your thoughts on the pentagon briefing yesterday. talked aboutsmen this pentagon program that takes this weaponry and other equipment, not just weapons, and passes it down to the police force. [video clip] >> i want to make one point on this. i understand that this is an issue of concern out there. we all push equipment -- we don't push equipment on anybody. this is excess equipment that taxpayers have paid for that we are not using anymore and it is made available to law-enforcement tendencies if they wanted and qualify for it. there is a lot of due diligence here. we are not going to give more equipment or equipment that is inappropriate for use by a law enforcement agency that is small and doesn't need it.
2:45 am
just because they ask for helicopter doesn't mean they get a helicopter. we are not militarizing law enforcement, we are not pushing things on. it is a process by which this equipment is available should they deem that they needed and wanted. -- wanted. host: eugene o'donnell, what do you make of the pentagon's response? it is aou can be sure broken process, you can be sure that legislative officials have not done enough oversight could one of the reasons is that we to realize what can happen in a small town could -- small-town. , newton,, colorado connecticut. a person starts shooting faculty in the kids on the school and elected officials -- why was it that this department stood ile people were being
2:46 am
killed and twiddled their thumbs? it is an attempt to have it both ways. needs to own it is a serious initial. you have us all rifles in the hands of people who clearly should not have them. it is harder to get them back once they are given out. it requires real focus and it requires saying yes, this agency should get it, this agency shouldn't, this is why. not something handing it off to dod -- as elected officials are actually saying, they don't know how any of this got to the police. host: eugene o'donnell, here is a tweet. guest: police will initially willt and then they embrace it. i'm not sure citizens will like the big brother issue. i'm not sure it will build
2:47 am
trust. what areene o'donnell, you watching for next in , missouri? guest: i am watching for the news cycle to come off this, get back on it, and i'm not hopeful that the root realities of this are going to be part of the conversation. sadly -- i tried to the upper mystic, but this has been going on for a long time, last few days, and it is a festering issue, and the optics provide great cable 24-hour coverage, but the substance of this doesn't, and i don't think we i don't see any indication that much substance is going to take place. maybe the military issue is going to be looked at. the caller from the nypd, the alumnus, when so that the weaponry has been given to the police for years.
2:48 am
some of this is new, some of this is just defensive equipment, some of this is helicopters, some of this is scary weaponry we have to reckon with. host: eugene o'donnell, later we continue our look with a discussion on the air quality act of 1967. are jeff homestead, a administrator for air and an environmental law professor at george washington university. "washington journal" a is live morning at 7:00 eastern on c-span. c-span, the sixth circuit court of appeals hears a
2:49 am
a case to determine whether ohio recognize same-sex marriages. then a discussion on education the new common core education standards. later, a look at the impact of russian intervention in ukraine on the global community. 200 years ago on august 24, routedritish soldiers american troops just outside of washington, d.c. nation's capital wide open to british forces who the city and burned downtown white house and the capitol building. anthony pitch, a talks about the burning of washington live on american history tv starting at 6:45 eastern on c-span3.
2:50 am
an interactive multimedia education center and along with provoider we are bringing public affairs coverage to you and the community. we visit schools and political and historical events throughout the country. learn more about the bus and to.the tour schedule go comments e-mail us or send us a tweet. soo you in our community. sixth circuit court of appeals the oral arguments in the case challenging whether recognize same sex couples legally married in other states. of four is cataclysm cases thet the subject. it's an hour.
2:51 am
these cases involve state recognition of out-of-state same-sex marriage and in that respect the michigan case that just argued which involved insit licensing or performance marriages. but the fundamental question in the sameese cases is and that fundamental question is not whether ohio should recognize same-sex marriage but who should make the important policy onf public behalf of the state. in rejecting the ohio voters decision on this public district court ignored its place in the judicial hiarchy. i would like to begin with the baker point. significant on the recognition kis case as it is oe case and inensing the prior discussion for the
2:52 am
first circuit case. and the plaintiffs in this case have not proffered in really any grounds on which to distinguish right to recognition to from the right to licensing and isause of that i think that essentially they make the same approach with respect to baker donee other cases have which is to say the trial super ceded have baker. and i think i heard a question -- not quite true with respect to the nonrecognition of case.rt of the ohio didn't judge black point out there is a wrinkle that ohio equally enforce on out-of-state marriages that aren't consistent
2:53 am
with ohio requirements for licenses? >> he did suggest that this recognize out of state same-sex marriages was someone precedented which i don't think is correct. havenk the way the courts distinguish is to wis between void and voidable marriages. those marriages that violate deemed a common law marriage and so it would not be recognized whether they were recognized by another state. >> say that over again. marriage out of state would be considered void in our -- >> it depends on the -- the way the courts undertake the choice say if theysis is to out-of-state marriage is only recognizehen we will it here even if it is unlawful firstnd that is the cousin case, the marriage case. theother types of merges if marriage would be domed void
2:54 am
which the ohio courts would take recognized bynot common law they wouldn't be recognized law. recited the henry stiles case where that was an in state ohio a common lawted, marriage that the court established the rule that that theabsolutely void and court would not recognize it and voidable is the distinction, not the same-sex opposite sexus marriage. so i think this -- so that is thinkample for why i baker is controlling because they have to make the distinctions. another they try to make is to say this is a substantive due to marry but not to marriage recognition a and i think that is -- i don't even need to get to gluxborg amalacias because under the -- analysis because under the supreme court and this case you have a specific
2:55 am
provision directly on point, a specific extra source of protection elsewhere within the tostitution you don't get substantive due process analysis and i think that is applicable here. a full figure and credit -- full dealsand credit clause with when one state has to laws.ize another state's the plaintiffs made no argument with respect to the marriage that wouldelf that violate the full faith and credit clause. anal gilbert analogy we make ie it refused to engage in assessment to process analysis with respect to a free speech saying substantive -- case saying substantive do you process is a first amendment. we are making the argument it is super full faith and credit laws. notions goes back to the that all of the rationales to
2:56 am
and --distinguish baker >> what is your assessment of the phrase doctrinal democrat askedat judge about? isif you have a case that all but overruled a summary dismissal but they don't know they don't expressly cited it because the supreme one loinbe -- the order that is the -- one line order that is the type of in ordernt necessary to implication that provision and i think that is consistent alreadyt the court has case cited inong the brief where the court said summary dismissals and regular opinions should have the same presidential value and that that summary dismissal's every bit as regular opinions agostini and
2:57 am
rodriguez rule. i don't think they can be distinguished in the manner at least consistent with this court's cases to suggest that only for regular decisions and not for -- >> aren't there some opinions that suggest if they don't hold that one of those summary dismissals like this 11-word long one we are talking about some kind of binding effect on the court from which not against the world? >> i don't think that is true, i at least the distinction that wright and miller and the court cases have drawn is the binding effect it has on courts versus the bind effect it has on the supreme court. court said that it has less bind effect in the supreme court but with respect courts i think -- >> of course, that was a michigan or i'm sorry, minnesota case. came out of the minnesota
2:58 am
supreme court. did it not? true, your honor. >> okay. >> can i ask this mr. gron and other standing, is that -- i may crust be a little who -- just be a little confused here but you have to address standing because jurisdictional. i think you do because i think that is the rule that you are talking about only applies seeking the same relief and i thought his relief theore the relief that plaintiffs sought was just as applied we want our death he wantedes that relief injunctionive allowing him to put on the death cert accounts of any future clients. i think the court decide in our brief, i think it says yes, that the general rule but when
2:59 am
they are not seeking identical we have to -- >> you are saying here one clip clip -- one claim not involving mr. gron but you can't attack more broadly -- moree injunction would be forward looking. >> i got it. other side of thati question as well. >> with row spect to i'm happy the third-party point now as well. i think it is straightforward, i think. the route there is the third-party standing doctrine has to be a close thationship and kowalski the supreme court decision made respectivea future relationships with clients of insufficient to establish the i thinky closeness and that that
3:00 am
>> but those were people that this point -- at ephemeral at this point. clients and he is a member of the class, and his is primarilyally the class that's at funerals and burial. >> i would think you could make believe distinction, i he is talking about future clients. word.a future client and the response to kowalski is
3:01 am
case --the >> so there's a difference between a matter of precedent a matter of --
3:02 am
hasink that standing still to be with respect to these cases. i think that's the easiest thirdt with respect to party standing. these suits are all over the country right now. so there's it not too much aich hindrance, of a hindrance. >> you get beyond baker, you got the sense from meeting some of these other decisions that trajectory.uring a and it does seem fair to say that the supreme court opinion trajectory favors the plaintiff, even if it's also equally fair that those cases don't necessarily answer the question here.
3:03 am
trajectory favors them. it's true they didn't reach today's issue in holdings worth. but what's a lower court to do with that. >> i think that roamer and varietyare just garden applications, and i think the in the concurrence bishop case was a pretty good type of as to why this doctrine can apply here. because insimply windsor it was an unusual to what hadusion, always been a state matter. an unusualwas expansive elimination of one rights. people's explain thennot
3:04 am
traditional definition of existed, which has since the founding of the state. really explain either the 2004 amendment, because i the 2004 amendments were assigned primarily by democracy, and the citizens and the general worrying that the fundamental question of public be taken from them, either by the massachusetts ohio supremehe court. rational response to that concern to pass a constitutional amendment traditionale definition of marriage. so i think judge holmes had it bishop by suggesting that in both of those cases what looking at isy and whencedented laws,
3:05 am
there's unprecedented laws they tose the judicial eye brow apply this type of animus thinkne, and i just don that concern is present with respect to the laws that have existed. there's nothing unusual about following the usual course, i say. so i think those cases are ground.ishable on that with respect to rational basis, we talked about democracy. think a distinct rational basis in the recognition cases, uniformity and having one position on this fundamental issue, such that the laws cannot evaded.y so that -- >> what implementation problems plaintiffs win? >> i certainly think that it don't know if i
3:06 am
it's a problem, but it would certainly require a legislative for instance. birth certificates have father be mother, maybe it should changed to parent one and parent two. i would imagine -- a pragmatic question. >> i would imagine those things the ohiopen throughout revised code where there's references to husbands and and so i certainly do think that the general assembly have to do a pretty thorough read of the ohio whated code to determine needs to be updated in light of whatever constitutional arise.ments statutes, adultery, divorce, you just have to use spouse. >> spouse or parent. >> that's all that would have to change. tax code as well. yeah, the pragmatic question,
3:07 am
you know, i didn't anticipate the question so i didn't review the revised code. >> would you? >> maybe i should have, but, yeah, i do think that there's no that it would require new >> or forms being reprinted perhaps. >> in addition to the ones mentioned, michigan, the two concrete ones with respect to out of state recognition one andy is number concerns about massachusetts controlling ohioans on this issue, uniformity. think proceeding with caution strikes me as a rational a new >> we accept that, which is a
3:08 am
variation -- let's accept for the sake of that it is. it surely cab last forever. court implement that? get the benefit of the doubt, and how does that work? >> the court it plentied the 8th amendment, they look to how society has changed over the up thend they count states. >> you hit some trigger, some number of states that recognize same sex marriage, and at that appropriate not to -- >> i certainly think that's one response. thatnk the basic point is it's just too new today. the law is always about drawing lines, and at one point maybe it becomes an irrational idea to ioceed with caution, but
3:09 am
don't think we're there yet. >> i don't know how many states the 10th circuit, but they came in in utah, they've had it in oklahoma. i don't know how many more there, bute are in or four, you've now got 25 states by your majority. which is a and we throw in four more and 30. you've got almost i mean hypothetically. it is hypothetical. >> the concept itself is too new -- >> the fourth circuit just came down with an opinion that affected virginia. wouldn't your guess be that apply tow going to north carolina, south carolina and who else is in there, west
3:10 am
virginia? >> that's true, but i think there's a difference between it a --whether then't think you can pick states. could just told me i count the states and i'm telling you, i'm counting. thehe way to counsel states, the states that have through a democratic processes ofe adopted that type change, and if you take that number, i think it's -- got 20 something states that see no reason tofus about this in the legislature because of the courts have decided. now, that of course seems that the supreme court is not going sideways.t but they can count too. it is my feeling that they probably do look at the polls. counting point that's where between the two of you is you don't have to the states count all that's ruled one way, particularly if there's going to
3:11 am
appeal. but you do count the states covered by those circuits where the state attorney general or state governor has decided not to appeal. those states it's over. best i can tell. hats the number around 20, 21. the fact is the majority of the states have retained the traditional definition of think that the sense.s approach makes take decades, to determine the effects of the change. to tellit's too early when the first state to recognize marriage -- you think had he been writing the opinion in like,r would have looked if alito had written the opinion? >> what do i think it would have
3:12 am
like? have see?at would he >> he makes the distinction that he doesn't think that the federal government's decision section 3 waso based on animus. would havehe distinguished rumor on that ground. but i do think this is a question. i think the main focus on windsor was the unusual nature into afederal intrusion marriage, and that's simply not the case with respect to the retaining its traditional definition of marriage. bythink about the methods which states, if we are interested in the federalism ideal, when we think about the methods by which states adapt to changing mores, were not much about the more peoples respects that elect folks to the general in
3:13 am
it's another legislative body who may have asked what their views are, and used some democratic process to try to locally, andlong .hen statewide i don't think we're talking about that so much when we're theting states, or changeents to getting speeded up. >> i think a cautious approach change, andntal marriage when it only been 10 years it's pretty irrational and i think any voter in highway that rationale. >> you have to concede that it's a much harder case, would you lose or what's your -- >> i think michigan's response respect toting with .he gender
3:14 am
i think another response is chains are the uncertain facts not inevitably mean that -- the court said we have these don't know whether an exception is necessary or not defer to theng to legislative branches. analysis coulde be under taken here. that, the testk to beou adopt also has consistent with the history and practices of the people, so i that that if you think heightened scrutiny versus reaction al basis review itually makes the difference, think the town of greece is a good indication that rationale
3:15 am
reviews the appropriate test, because the traditional has beenn of marriage its this country since founding. the full faith and credit class claim, the last claim in the henry case, the basic analogy there is that full faith and not coguse claims are nicable under section 1983 like the suejust prem asit -- supremacy law. >> there is a question. nl of how many years it was from the start of until the 19th amendment when women achieved vote?ght to
3:16 am
are you familiar? >> i'm not, i'm sorry. it took 78d you that of crossing the desert back and forth, back and forth, through thehieve it democratic process, would you be surprised? >> not with respect to the united states constitution, the united states constitution sets a very high bar for amendment. no.o no no no. i'm talking about the going the country,e in every city, every school board election for 78 years and trying going to convince the legislatures to adopt or to extend to vote to women. him years -- 78 years of it. would you be surprised to find out it didn't work? theit took an amendment to constitution to finally achieve that after 78 years?
3:17 am
thats, there's no question the u.s. constitution is very -- >> no no no, that's not the question. excuse me. the point is you want to do this, democratically, state by state, legislature by legislature, municipal gopt by municipal government, as far as i know. work. just doesn't always it doesn't always work. just theto get women right to go to the polls and vote, that's all. you don't have to respond. ( laughter ) i just thought you'd like to onw that in case you're ever jeopardy. ( laughter ) >> you have five minutes rebuttal to think about that. okay. >> thank you. court.please the
3:18 am
three babies have been born to the henry plaintiffs in the last two months, one adoption has been finalize a few months earlier for another plaintiff couple in henry. all four same sex couples all were matter in one of those 20 to 21 states where the issue is done. sexr marriage for same couples is available. so ohio refuses to recognize doingmarriages, and in so also refuses to these couples and to their children recognition of parentage. so instead ohio issue is a birth certificate that names only one member of each couple as the parent and denies recognition as parent to the other. problem.real serious ohio also says to the surviving spouses, you must accept the your lovedficate for one. that's wrong. one that does not say you were even though you are, and
3:19 am
one that leaves blank the spot where your name should go. a surviving spouse. so ohio, and this is such a big between the ohio and michigan cases, i totally support and agree with the arguments and terms of the fundamental right to marry, but this point we're just doing a recognition case. marriage -- little question is a simplistic, but i'd love to hear your reaction to it because we allave all these cases and these issues. my rather simplistic way of isn't the it is, first question whether a state can decide for its own purposes, citizens whether to recognize same sex marriage? decides it's not going to do that for now and if the u.s. constitution permits that
3:20 am
i seems really odd to me that they can be told, okay, even though you can make that choice for your own citizens, if someone comes from state that public policy choice doesn't bind you. the case andnk of vice versa, if you win that of ohiof the state under the 14th amendment must recognize same sex marriages of course state, then it follows you win the point.tion >> but look at our decision grid, because you're suggesting question of states defining marriages it's a ofeshold question for all this. >> it's one way to think about it. maybe it's too simplistic. to do it.e way but when we look at the question of marriage recognition, you've over here,estion what is the state's definition of access willnd they provide to marriage. and that can be a fundamental
3:21 am
under turner,age sayingoving, you know, that it's a bilateral association, therefore same sex to marry.t if that's the situation, our case is simple as a core lary of fundamental right to marry. then you have also under due notion that once you're married, that attaches rights.s of vested you have important parenting rights. you have important child rearing rights that have been recognized by the supreme court. and for history that's been across state lines. so that's a separate argument due process clause that there is a fundamental recognitionriage that is transportable. then you have another line which windsor, which is equal protection. you've got a if
3:22 am
really unusual situation, like for historye, for the federal government always accepted the states that say this is a marriage and the federal government says okay, marriage,pt it as a then suddenly because same sex couples are getting matter the federal government says no we're get boo the business of defining marriage. that's an unusual requires aion, it special consideration and when that test,pplied certainly working within equal protection, it said that that is aof discrimination violation of equal protection, tot the principal purpose impose inequality. so it wasn't about whether a certain state must or must not define marriage. about if you've got a timern and practice over
3:23 am
that you're only changing because of the type of people participate in marriage -- >> or the government that's doing it. >> well, justice kennedy in his decision clearly said that he doing this on a federalism basis, that he was, majority ruling should be looked at as an equal protection clause. fits windsor,ctly the first case filed after windsor, we looked at the record windsor, we went out and hired all the same experts, have you the same report as you had you have the same problem. because ohio did have a long and it still does, of theg on the extreme side of state of celebration rule. accepted have always first marriages, underage marriages, and common law marriages that you can't do in
3:24 am
ohio and now suddenly because of the people in these 20 states that are getting married you say going to change the bar. that raises the decision,guage of the the state doesn't have to recognize every marriage in state.ther >> if you go and look at all the sources that we cite, including that go way back, we can't find another case where ohio is refusing to recognize states thatom other otherwise couldn't be practiced in ohio. really have -- >> there's not a lot of case law. but the only case they cited was an instate case. a rule of law, and it is one that ohio has followed. addeden you have the
3:25 am
dimensions, because when you look at windsor and you say, was that special consideration that they entered into, and how did that apply to ohio, you can look to some other rational basis cases because learning isreally that rational basis doesn't have just one flavor. got a group that's targeted because of a history of as in frontier row -- frontiero. if you've got important personal inerests at stake, as griswold where you've got issues', ifonomy you've got a departure from an practice, thent those are all factors that if we look at the case law seem to to lookthat we're going at things a little more closely. >> how do they apply here? it'san't say unprecedented, right, because this is the definition that --
3:26 am
not talking about the definition. it is unprecedented that ohio would unilaterally say to a whole group of people who are we'red in another state, not going to accept you as people that we will recognize as married here. thet's unprecedented if ohio supreme court itself, and it's the key decision they're doesn'ton, says no this mean you have to recognize every marriage, even if it's against policy.e's public >> because it was theoretical. they were leaning on a back door. but we look at the real situation here, this back door people who have a history of discrimination, issue that's very personal and carries with it very important rights, and it is departure -- >> i agree there's a history of discrimination, i don't think that.s any doubt about i guess what is not so obvious to me is a history of
3:27 am
tocrimination when it comes access to marriage. that seems to me a much more recent phenomenon and just a current times,he and there's sensitivity on both side of the debate. we really find is that if you look at how the windsor majority analyzed this, they looked at the history of the text int and its own order to determine whether this departure is significant enough a violation of equal protection clause. they said it was, that there was dignity being denied to same sex marriages and that it was the essence of the statute, and that it humiliated tens of thousands of children. it said in the federal context that there was no legitimate purpose served in such a statute. that all applies here. there's no legitimate purpose to say -- >> in one setting the federal government is doing something done
3:28 am
and worst of all doing it after a state has already decided to recognize same sex marriage. and today's cases it's a the state, each state has always been in charge of this issue. seems like a pretty serious difference. >> well, they've been in charge of the issue definitions, but when i comes to place of is a rulen rule, this that they have followed. and as i saw, it was a discussion as to what they wouldn't follow. >> the deal that these couples they got married in new york, california, massachusetts, maryland and they wouldas that have a marriage that they could carry from pennsylvania, which now -- >> so we add into the logic of this that they were well aware were moving to a state same sex marriage was not recognized? >> your honor, we are in a
3:29 am
situation where the democratic okay --has evolved, >> i think it goes to the thinking that you propose. >> right, but there's not like a negligence defense to a al right.on either your marriage is transportable or it's not. they got matter because they were in love. they didn't get married trying can ink of, well, where go here and where can i go there. they do expect that their transportable,e that's a reasonable expectation. in fact, 44% of the people in now live in a state where marriage is, same sex marriage is available. marry has beento recognized. and that includes those 20 to 21 the deal is done, where there's no more appeals penning. point, and this is why the recognition case is somegnificant, because at
3:30 am
point when the democratic process is played out, you and you are at this scale that we nearly half the country is in a situation where they're being told you can't carry your marriage across a state line, that's the point thee if ever there was one constitution requirement -- >> the reason -- on the one habit helps you in a sense, maybe you're getting some tipping point. it suggests hand, the democrat ib process is working and indeed working quicklyely and very from the client's perspective. since powers. so it's been a long process of development. but, judge, what i'm suggesting thehat the ultimate role of federal court is to keep


info Stream Only

Uploaded by TV Archive on