tv U.S. House of Representatives Legislative Business CSPAN May 23, 2016 12:00pm-2:01pm EDT
why problem is that when i -- >> we will take you live to the floor of the house. general speeches starting when they returned to a number of the chair: speaker's rooms, washington, d.c., may 23, 2016. i hereby appoint the honorable mark meadows to act as speaker pro tempore on this day. signed, prine, speaker of the house of representatives. the speaker pro tempore: pursuant to the order of the house of january 5, 2016, the chair will now recognize members from lists submitted by the
majorities for morning hour debate. the chair will alternate recognition between the parties with each party limited to one hour and each member other than the majority and minority leaders and minority whip limited to five minutes, but no event shall debate continue beyond 1:50 p.m. the claire recognizes the gentleman from texas -- the chair recognizes the gentleman from texas, mr. flores, for five minutes. you, mr. thank speaker. mr. speaker, i rise today to honor frances michael young of waco, texas, who passed away on may 1, 2016. mr. young, bener known as f.m., was a leading business man in waco and central texas. while they ran a successful business and employed hundreds of texans, his lasting legacy are his family's charitable
institutions to waco institutions such as baylor university, and providence health center. f.m. was born on january 13, 1930,. after a series of moves, the young family settled in spiegelville, texas, where he attended local schools and met gloria davis who later became his loving wife of over 0 years. f.m. went into business with his brother's -- brothers r.t. and d.w. building surplus military equipment. in 1948, the young brothers created waco's first asphalt plant and would begin winning and working on state highway contracts in 1950. over the next 20 years he expanded the cup to be one of the top five highway contractors in texas. f.m. spent countless hours serving his local community in central texas in a lot of ways. he served on the board of the waco boys club, baylor waco foundation. he and gloria also a rich history of donating to waco
institutions. the young provided concrete for the casey stadium. created a marine on the river for the historic village, and designed and built a riverboat tourist attraction along the river. in 2007, providence hospital opened f.m. and gloria young tower. this facility which was underwritten by a financial contribution from f.m. and gloria includes a five story addition that provides bed space with state-of-the-art cardiac clinics and care centers. they also played a vital role in opening the waco mammoth site, an educational tourist attraction which was recently designated a national monument by the u.s. park service. he worked tirelessly to better our central texas and waco communities. he's loved by his city and left an enduring impression on central texas. he will be forever remembered as a great philanthropist,
businessman, husband, father, grandfather, and friend. my wife and i offer our deepest and heartfelt condolences to the young family. we also lift up the family and friends of f.m. young in our prayers. today i requested a united states flag be flown over the capitol to honor the life and legacy of f.m. young. i ask all americans to continue praying for our conetry during these difficult times for our military and men -- men and women and first responders who protect us here at home. thank you, mr. speaker. i yield back the balance of my ime. some the gentleman yields back. the chair recognizes the gentleman from south carolina, mr. mulvaney, for five minutes. mr. mulvaney: thank you, mr. speaker. 78 yesterday in hanoi under -- yesterday in hanoi under a giant bronze statue of ho chi minh, the president of the united states announced he was formally
rescinding our decades long sale of military equipment to the socialist republic of vietnam. without input from congress and one grand unilateral action, the president decided to reward vietnam for its egregious record on human rights and continuing crack down on religious freedoms. but worst than that, he's surrendered a diplomatic opportunity to find out what happened to the 1,500 americans still unaccounted for in vietnam and southeast asia. it was unfortunate to see where this president's priorities lie. there is still time to correct that wrong. before he leaves vietnam i have a message to the president. a message from the rolling thunder vets, chapter 1 of south carolina. and they asked me to ask him this, instead of using this opportunity to reward vietnam or to apologize what he sees as past american wrongs, please, please, please, mr. president,
use this time instead to do something productive and positive and patriotic. help find our missing vets and help bring them home. thank you, mr. speaker. the speaker pro tempore: the gentleman yields back the balance of his time. pursuant to clause 1-a of rule 1, the chair declares the house in recess until 2:00 p.m.
recently administration officials hinted the ban could be removed partly in response to china's military buildup in the south china sea. the chair of the house foreign affairs committee ed royce issued a statement in response. it reads in part, the security situation in southeast asia is driving several countries to seek closer military ties to the understand and that is information the administration . uld use to press the obama administration's pivot to asia should be about security ties but also standing up for brave vietnamese believers in democracy when they're under assault in vietnam. we could hear more about this issue during the session today in the house gaveling back in at 2:00 eastern time here on c-span. >> tonight on "the communicators" -- we broadcast from the n.i.t. conference in
boston known as the internet and television expo sponsored by the national cable and telecommunications industry. we talk to tom wheeler, the f.c.c. chairman about set-top boxes. mr. wheel are: you see the evolution of television. the explosion of alternatives. you see increased tax about smaller bundles and how that changes the relationship with the consumer. you see alternative pathways to n plus 1 kind er of devices in that we have the the ial to be entering best era ever. >> watch "the communicators" tonight at 8:00 eastern on c-span2.
>> on newsmakers this week we're joined by congressman mac thornberry of texas. he's chair of the armed services committee and saw the $610 billion 2017 defense policy bill passed in the house. in studio to help with our questions today we're joined by rn kern -- about karin karin demijian.aroun coip there will be several -- guest: there will be several bills that come out. the big thing -- there are policy points we don't agree. your bill dips into war funds more than the senate bill does and though mccain may be putting an extra measure on the floor you say your approach is necessary for readiness but if it doesn't match with the senate what do you see foresee
going forward and where do you stand to make a compromise without losing your position? mr. thornberry: well, the first question is what the bill looks like when it comes off the senate floor. we passed our bill pretty overwhelmingly in the house, as you mentioned, senator mccain has talked about adding some money on the senate floor. and generally for me i wait until the bill comes off the senate floor and then i have a better feel for what we're dealing with. the other thing that we'll have in the coming week is hopefully the defense appropriation bill will come soon. and it generally, i believe, will follow the path that we have taken. so you're right. at some point everybody's going to have to get together and figure out how to have a common position to get bills to the president. but we'll take it step at a time and this was a pretty good step that we took in the house this week.
karoun: is this a good position after you had the agreement from last year and if the senate is not going to follow suit or push as hard, is it hard? mr. thornberry: well, two things. the way we approach this is consistent with the agreement of last year because the agreement was there would be a minimum level to meet base requirements for the military. those are things like pay and training and maintenance and procurement. and then there would be additional funds funds for overseas deployments depending what overseas deployments the president wanted to pursue. it turns out president obama wants to pursue a lot more overseas deployments and yet he did not ask for the money to was envisioned in the agreement. so we tried to stay with the base requirements. under the basic principle, i'll say, that it's wrong to send men and women out on deployments or on missions without making sure they are
fully supported and fully trained to carry out those minges missions. and i do think it's essential that we turn around these trends that show increase in aircraft accidents, pilots not getting the training they need, cannibalizing aircraft. every service we're seeing examples of readiness which basically means our men and women are not being supported the way they should. and, again, i just think that's that and we got to turn around. host: on the funding sthrat gee, the bill you passed sets up the joe seas war fund by $18 billion come the springtime. mr. thornberry: here's what we do. we fund the overseas deployments for six months into the new fiscal year. and part of the reason we do it is that's exactly what was done between bush and obama in 2008. so in june of 2008 under
democratic majorities, congress passed the full year for base requirements for the military and then several months for the overseas deployments to give the new president a chance to take a fresh look at it, make adjustments, maybe he or she does not want to have all those deployments and make adjustments to funding and then the new -- and present that to the new congress and then you finish out the fiscal year. that's exactly what happened between bush and obama and we're following the same approach this year. host: so the democratic argument now, though, in the springtime when this is sort by that amount of money that you're gambling with the war fighter funding at that point. mr. thornberry: i guess i'd say two things. one is if we could all come to agreement to fully fund everything i think it would be better, of course. but taking the same approach that was done before, the other thing is in the obama years we
have had continuing resolutions 23 times that have not lasted the whole fiscal year. now, that's the same thing. you're funding part of the year, not the whole year. it's not the most desirable way to do it, but it's not a catastrophe when it happens. and in this case, it enables us to turn around this slide in readiness and it gives the new president, whoever he or she may be, an opportunity to take a fresh look at these deployments and make adjustments accordingly. karoun: there is a second counterargument that is waived against that. sure, it happened in 2008 but there were no budget caps in 2008. when you talk about doing the same thing now, maybe back before if you wanted to switch levels you could continue them in future years. but because the budget caps exist you're funding programs with no guarantee you can put more money where you put money for a few months down the line. i mean, is that -- mr. thornberry: well, i guess my response is, there's not going to be any guarantees
about any of these things, particularly about budgeting. but for each of the last four years we have made adjustments to the budget caps for defense. so we've been adjusting it. you know, i don't have any reason to think some sort of adjustment in the future is impossible. but in the meantime, what this allows us to do is turn that readiness around, make sure to we are able to begin catch up on maintnants, facilities, replace 1970's helicopters with 2016 helicopters. and stop the cuts in the number of people in the military. one of the things i've come to realize is, we won't fix this readiness problem by putting more money in operations and maintenance. we're getting to a point, for example, with aircraft mechanics, where we don't have enough and the ones we have we're working harder and harder seven days a week and they are
leaving to go to the airlines. we have to stop the personnel cuts as well as the other items in order to fix this. jeff: speaking to readiness, has it got to a point that service members' lives are at risk because of these budget cuts? mr. thornberry: i don't know but maybe. really, the alarm bell that went off for me is when i saw the class a mishap rate, and that means you lose the aircraft or somebody dies, go up drastically for the marines and also up tore the army. as we dig -- up for the army. as we dig deeper, and we're digging, by the way, what's happening. it seems the air force has problems, navy has problems and lives are exactly at stake here. it's not just a matter of budget numbers or political leverage. when they don't get the training, the aircraft is not
maintained, we affect lives. jeff: well, my readers would say congress created the problems with the budget cats. it's been five years. why can't congress fix that? mr. thornberry: i'm for that, by the way. they're right. congress contributed to the problem. the president contributed to the problem. congress and the president can eliminate these caps which have not worked out the way they intended. remember what was intended was these caps would be so drastic it would force mandatory spending cuts and yet that didn't happen. and so instead, as i mentioned the last four years we've found ways around the cap, adjusted them. it's time to be more realistic. here's just one fact. since 2010, we have cut the defense budget 23%. in real terms. the world is not 23% safer than it was then. know, where -- and
yet, you know, we haven't fixed the problem. jeff: you're not the only one that says the mishap is because of budget caps. the assistant commandant, general paxton, said he's looking into it. when you look, for example, the january crash of two ch-53's that killed two marines, can you draw a line between budget cuts and that fatal crash? mr. thornberry: i have not been briefed. if they finished the investigation on the exact causes of that crash. but needless to say, there have een a number of mishaps, crashes, some of which have een fatal that caused enormous concern and certainly -- i think it's important to say that military training is inherently dangerous to some extent. but what's disturbing is i look at the 10-year trends or the
10-year averages plus the more recent trends and something is drastically going wrong. and so i do think it's up to the leadership in the pentagon and the military and us to find out what it is and to take action today to fix it. you know, we can't wait on a new president or congress to fix the budget control act to say, ok, we'll go ahead and put these lives at risk until we get our budget act together. i don't think that's a good option. karoun: i know we're going to go into a lot of details about where the rubber hits the road on all these things but there's one policy, really, matter i want to talk about that stems out of the defense bill that has taken a life of its own at this point. you had arguments happening over women in the draft and in the last 24 hours arguments about lgbt rights with federal contractors. this stemmed from a provision that began in your committee about when congressman russell decided to introduce that
amendment that was voted for to give religious organizations exemptions from certain parts of the civil rights law. it seemed at this point that, you know, democrats not being able to get a say and a vote on that in the floor, they are now going to be raising this. it's an issue with various appropriations bills as we saw today and like we're talking about, budget numbers seem to matter and getting the money seems to matter. when you spoke to my paper's editorial board you said you didn't like how the women was handled. hindsight, would you have handled the russell situation and the lgbt question differently given this seems to be a very emotional issue that may hold up, not just the defense bill but the appropriations process going forward too? mr. thornberry: just to clarify for a second. what i think we could have done better in the armed services committee on women participating in selective service was to understand
better the scoring ramifications of it which it gets technical in the weeds i understand. but my understanding an amendment was going to be withdrawn. it was not and it led to all sorts of complications procedurally on how we could deal with that issue going forward. you know, on the russell amendment that you refer to, i read it on the floor last night for everybody. i have to say i'm a little confused at the argument that is made because the amendment -- the provision says the federal government shall not do anything that violates this provision of the civil rights act of 1964 or this provision of the americans with disabilities act of 1990. that's all it says. it's maybe 10, 12 lines, and somehow that has mushroomed, as you correctly described, into some terrible discrimination. i'm a recovering lawyer. i haven't practiced law in a
long time, but i've read this several times. i don't understand that argument. i think it's possible you may have some outside groups stirring the pot for their own purposes and it's possible that a number of members have not actually read the language or don't want to. nobody -- it's not in the military's best interest to reverse any sort of -- to go backwards on discrimination. concern i think was that these things that are law are what is -- takes priority over the president's executive orders. now maybe there's a conflict there. i don't know that there is but the provision that's become controversial says 1964 civil rights act, a.d.a., nothing contradicts that which is the law anyway. so tell you the truth, i'm not sure why all this has blown up.
i am struck, however, by the degree to which extraneous issues come out in our defense authorization bill. this is about the troops, about their pay, about weapons, readiness that we were just talking about. and we seem to spend lots of time talking about other things, including this. karoun: one other issue that's come up in recurrent years is the guantanamo issue and again in this bill you don't let any of the funding to be used for the transfer issue to the united states. this past week, the senate confirmed the army secretary and there was a hold on his nomination along the line of the same issue. one senator said republicans have successfully run out the clock on guantanamo. i am wondering if you agree, if it's a done deal and if you think that it's too late, basically, to do anything? have the republicans won on this issue? mr. thornberry: i don't know
about won. we did have a direct vote on this by the wait a minute and omingly the house voted to -- overwhelmingly the house voted to leave the restrictions in place and the house has voted that way ever since president obama's been in office under democratic jorts, republican jorts. s -- majorities, republican majorities. those restrictions have been in place so i think that's where congress is. i think that's where the american people are. karoun: are you concerned that this is something that republicans have to protect against for the duration of obama's term? mr. thornberry: i think the current restrictions which basically say you can't bring guantanamo detainees to the united states and you can't alter facilities in the united states to house them, i think they're going to stay in place. and as i say, under both parties that has been the restriction and i don't foresee that changing. jeff: if i could go back to readiness for a second. when you talk to service members how budget cuts affected their lives, what do they tell you? mr. thornberry: some of them get quite emotional exactly
about -- and they don't say budget cuts have meant this to me but they say this is what i'm dealing with now. and i talk to pilots who have to -- who don't have the aircraft that they need when they're about to deploy in a few weeks. i talked to mechanics who talk about working seven days a week long hours, never seeing their kids and they feel like they're deployed overseas when they're right here at home. a top pilot for one of the services who's leaving the service, loves what he does but he doesn't think the aircraft he flies are safe anymore and he's got two young kids at home. so the -- you know, the feelings of frustration, of not being able to do what they signed up to do is certainly
closer to the surface than i've ever seen in talking with the military. and so i do think it's a cumulative effect, not only of budget cuts but also of the pace of deployments over the past number of years and we've been asking more and more of these folks and i'm afraid we're reaching the breaking point. jeff: so to get back to the question i had. why is congress and the president unable to fix this? it's been five years. it's gotten to the point that you are worried that perhaps budget cuts have led to aviation crashes, perhaps fatal ones? is it the fact that -- or should i say, is there a general apathy in washington toward national defense? mr. thornberry: i wouldn't say there's an apathy. there are -- i will just take this example. last year both the house and senate passed the defense authorization bill. the president vetoed it because he was not going to approve defense funding unless and
until there was more money spent on domestic programs. so for the first time ever defense -- our military was held hostage by the president trying to leverage it for more domestic funding. now, there may be good reasons to spend more money on domestic funding but i guess one answer to your question is, it's a political football and too often some people on the republican side don't want to increase spending at all for anything. people on the democratic side only want to increase defense if you can increase an equal amount on the domestic side, and who's caught in the middle? it's the men and women who serve. host: we are about six or seven minutes left before we say goodbye to you. a little while ago you mentioned you were surprised that provisions that get added to this or the debates that come up that have nothing to do with defense policy. i wonder, do you think a debate over whether congress should authorize the fight against
isis is a debate that should happen through the defense policy process? is that something that should come up and that your colleagues should vote on? congress has now watched as the president has bombed iraq since i believe it's august of 2014 now. mr. thornberry: absolutely i think it should come up. we should vote on it. now, we -- but i think this is of such import it ought to stand on its own and not be part of the bill that we're talking about. now, we did have a debate and a vote on repealing the 2001 aumf on the bill that we considered this week, but i think that needs to be updated. as a matter of fact, the house in 2011, 2012 passed updates to that aumf to better reflect the way terrorists are spreading out. i think we ought to have that debate as well as isis try to update, given the way terrorism has changed.
the speaker has asked us to have listening sessions to try to find some way that we can get to 218, a majority vote, to do that. and there have been several meetings about it. the challenge is lots of people have different ideas and so far i don't think there is one approach that has goten a majority of view. but i think we should. i think that's our job. jeff: chairman, with the amount of resources and money allocated to the fight of the islamic state, can you say our strategy is to continue or win the islamic state? mr. thornberry: barely contain. i would say just avoid disaster because what you've seen is the president slowly dialing up the pressure of a few hundred people. a slight relaxation on the rules on when they can drop bombs. it's not really to win and there has been success on the ground, but in iraq and syria but the rest of the story is isis is spreading out to more
countries than ever before. so it's not even very successful in containing them geographically and i think in some ways are going more dangerous. jeff: so the u.s. is not trying to defeat isis right now? mr. thornberry: it might be someone's stated intention but that's not what the facts on the ground, i think, would show. karoun: strategic planning, one of the things you added to the defense policy bill was a move to shrink the national security council from 400 approximately now chopping it down to 100. that's grown and grown over several administrations. if the concern of republicans is we should be doing better strategic planning with isis, is that too much of a shock to the system to quarter basically the part of the president's administration that handles this sort of policy planning? mr. thornberry: well, just to be clear, i didn't say how many people should be in the national security council staff. my amendment says, if it goes above 100, then it's got to be
confirmed by the senate and then the national securitied a sizor to be able -- security advisor would be able to testify in front of congress. it inevitably is more involved in operational decisions and that's exactly what we're seeing. but some of the folks who have been most concerned about the growth of the national security council make exactly this point. when it gets to a big -- to such a big number, it's involved in all these operational directives and it's not doing the coordination function, the strategic planning that it was designed to do and i think that's exactly what we've seen in recent years. karoun: the 00 number is a benchmark. is that a drop you want to see in a perfect world? what are the repercussions of it? mr. thornberry: it's completely up to the next president. if the president wants to have 99 people, he or she may. if the next president has 400
like this one does, then all that has to happen is the national security advisor has to be confirmed by the senate. it's completely up to the next president. if the next president wants ,000 people, fine. it has to be confirmed by the senate. karoun: we talked about a great deal about budgeting priorities and you laid out a minute ago about what republicans want versus what leaders want. if we're coming to a point if your plan goes forward we'd have to have an emergency supplemental to keep the war funds going in the spring. would you support a supplemental that had domestic spending in it too? mr. thornberry: depending on the justification. i certainly supported supplementals for disaster relief. i just voted for the zika bill we passed in the house this week. so, you know, i'm not for throwing money at things. i'm not for saying you can't spend a dollar on defense if you spend another dollar on domestic but if there is a justification for it, of
course. host: well, we have to leave it right there. chairman mac thornberry, thank you for being our newsmaker this week. mr. thornberry: thank you. host: we're continuing with karoun and jeff. we spent time talking about the $610 billion defense policy bill. what's the road ahead for this bill? jeff: difficult. the senate is going to take up debate on its version of the bill next week whenever it's completed. the two sides have to go to a conference committee because there are radical differences between the two sides of this. the senate calls for women to have to sign up for the draft. the house version does not. the house version uses wartime funding in a way the senate version does not. there's going to have to be a real meeting of the minds here because these are substantial differences. host: and there is a veto threat from the white house. jeff: correct. host: how is that going to be
dealt with going forward? what has the republican leadership said about that? are they willing to try that veto threat? karoun: all they did is call on the obama administration to draft that veto. they have not made any moves or signaled to suggest they will be amending or hinting they were ready to give up certain provisions of that bill in response to that veto threat and that veto threat came days -- monday. they voted very late last night on this bill. host: a lot of concerns went into that veto threat. democrats in general expressing a lot of concerns about this bill. you bring up one of the amendments, the russell amendment. i want you to go back to that amendment and the controversy it sort has sparked since the passage of the defense policy bill. karoun: the chairman spoke about this a little bit. this amendment -- it's a short amendment. it was brought up during the committee process fairly late at night as the committee was marking up the bill. and steve russell from oklahoma says in order to clarify under executive order from i believe it's 2014 which talks about nondiscrimination for
contractors or federal contractors that religious organizations that have federal contracts would not -- would be exempt from certain parts of civil rights law and the americans with disabilities act, it's phrased, and declare there's religious freedom under these nondiscrimination federal contracts. democrats very quickly saw that as a threat to lgbt rights for employees of potential religious organizations that idea an organization -- religious organization is, not very closely defined. and so there was a pushback. it was actually led by republicans. it was a bipartisan crew that tried to bring up an amendment to the defense policy bill to get this part out once it hit the floor. but the rules committee is all powerful in many ways and they didn't let that amendment come to the floor. so what you saw happened was an amendment now come from sean maloney who -- it's not specifically tied to the exact same language into the russell amendment but it's kind of
borne of that frustration that came up. maloney had an amendment on the floor -- democrat from new york. had an amendment. put an amendment on the floor for this appropriations bill, the military construction and veterans affairs one. this happening thursday morning, exactly, i'm sorry, that said you cannot use federal -- you cannot basically contractors are discriminating on the basis of sexual orientation or gender orientation -- gender identity shouldn't be getting taxpayer dollars on federal contracts. it's not directly addressing the religious liberties issue. it's not a direct hit onerousle but it came out of the same thing. it was a late breaking thing on thursday morning after there was an emotional debate over it a few days before. what happened, it's very interesting, is that republicans -- enough republicans actually voted for that amendment that it seemed like it had won until the time for the amendment vote was stretched out, stretched out. all of a sudden you started
seeing the yes votes tick down until they lost by one. now it's become a thing people on both sides, republicans and democrats, there are other things we have to do here. there are democrats saying we need to bring this up again. we need to -- shame on the republicans that voted no. they will be on the wrong side of history. then people on the republican side, on the more conservative end saying, well, there are other places where the president has overstepped his authority, having to deal with -- nondiscrimination issues that infringe on religious liberties so -- host: did you sense some frustration from the chairman as we were talking to him about issues side tracking the military debate, the readiness debate, planes and ships and tanks? karoun: oh, yeah. it's not just the chairman. you hear people on all sides of this issue getting really, really frustrated this has come down to -- you're talking about enormous national security bills. you're talking about bills that will fund the pentagon and our overseas operations or not.
host: bills that congress passes each other. karoun: even if they're not failing, the bills are passing the appropriation bill thursday morning. the defense policy wednesday night. but they're passing under the cloud of real frustrations and real anger and veto threats sometimes. and i don't think anybody likes it. i mean, i heard republicans who actually support the democrat side. tell me why does this have to be happening here and now and there is blame to be had all around and it's interesting to see who is blaming who. but i don't think anyone is happy this is happening in this context but it's here it is. the defense department tends to move ahead of the country on these things. host: is this unusual? does this happen every year? jeff: well, the chairman seemed to indicate this happened. last year on a different topic. i could tell he was focused on things like readiness and
making sure our planes were flying and people have enough training and it this is an unnecessary burden that is put on defense spending. so if you listen to his comments you think he was most passionate about pilots not getting training, pilots not having the planes they need and then there's this he has to deal with which changes the debate entirely. so now this will be a recurring issue from now until whenever. host: well, we're going to have to leave it there. jeff schogol of the marine times. and karoun. thank you for joining us on "newsmakers" this week. >> the house meeting this week before the memorial day break. a vote on 911 emergency services. on tuesday they'll take up spending and water projects for 2017. also on the agenda, a measure dealing with federal oversight
of toxic commercial chemicals. watch the house live at 2:00 eastern. and the senate's in at 3:00 to consider a bill on registering sex offenders and the rights of sexual assault survivors. a vote on final passage is scheduled for 5:30 p.m. eastern. you can watch the senate live over on c-span2. and in washington, d.c., today the supreme court unanimously ruled that a group of virginia republican members of congress did not have standing to challenge a court ordered redistricting plan. in 120 the virginia state legislature increased the share of black voters in virginia's third congressional district, a district that was already heavily democratic. two voters in that district challenged the map saying it unconstitutionally reduced the influential of black voters in other districts. a federal court agreed, ruling the map was racially gerrymandered and issued its own map. republican members of congress appealed arguing that the court's map harmed their chances for re-election. the supreme court rejected their claim and have allowed the court ordered plan to
stand. we'll take a listen now to the oral argument from the case. >> we'll hear argument first this morning in case 141504, wittman v. personhuballah. mr. carbon. mr. carbon: may it please the court. the sum total of the alleged violation is that they treated black districts the same. it's undisputed that with respect to all of those districts they preserved the court for the district and whatever minor -- justice ginsburg: did they preserve when they shifted something like 180,000 people around? mr. carvin: you're right, your honor. 83% of the prior occupants in district three were the core. the plaintiff's district had 69,000. if you spend any money doing restricting just because they're 63,000 short doesn't mean you'll move anywhere near
63,000. let me explain. district 11 in virginia was 63,000 short. they moved 480,000 people to fill that up. the district directly adjacent to district three was district two. justice ginsburg: did that preserve the core? mr. carvin: yes. they said core preservation was the most important interpretation. the district court found that incurvency protection in politics were motivating the district. the way they were protecting incumbents was through core preservation and the key problem here is they never found that race subordinated incurveansy protection or -- incurvency protection or politics. justice ginsburg: how can we take politics when the drafter of the plan -- rightly or wrongly the drafter of the plan represented the court? i haven't looked at partisan performance. it was not one of the factors i considered in drawing districts and we have to take that --
drafter of the plan said. he didn't take into account partisan performance. mr. carvin: in the face of that statement, the court found as a fact that politics inarguably motivated these districts. every incumbent was re-elected in the district. >> do politics motivate the change in district? that is our objective. justice kennedy: that is what we seek to do, to preserve incumbency or whatever? may we then move race move people from one district to the other because that's the easiest way to do? we know it's a race that votes strongly for a particular party so we can use race for this ultimate neutral purpose? mr. carvin: you can't use race as a proxy, justice kennedy. it's very important -- justice kennedy: i understood your argument to be that. so perhaps you can correct it. mr. carvin: cromartie 2 tells
the federal judicialary you can't use it as a -- judiciary you can't use it as a proxy for race. if everybody in district 3 was white, we know they wouldn't have led to a dramatic exodus of democratic voter into the four adjacent districts all of which had republican incumbents if all of those people were right. and therefore since they were ursuing exactly the same incumbency protection with respect to district three they are not somehow disabled from doing that simply because the predominantly democratic voters happened to be black. that is why cromartie 2 insisted that plaintiffs show meeting the demanded burden of showing that race -- traditional it was subordinated to race. >> how do you know the motive of the legislature was? let's say you have 10% of the
legislators say this is because of race. justice roberts: that's their motive. 10% say it's because of partisanship and 80% say nothing at all. hat's the motive of that legislature? mr. carvin: this court has always looked, for example, in cromartie 2, the effects. if there was a way of achieving the political objectives without respect to the racial comp significance of it, then you need -- -- composition of it, then you yeed to achieve the political objectives and yet plaintiffs in the district court here approved that any realteration of district three which results in the dim anything of the black voting age population would be absolutely contrary to the normal political agenda that would be motivating the legislature if everybody involved was white. the plaintiff's alternative only reduced that by 3% of 50%
and yet that converted district two with a brand new republican incumbent to a toss-up district to what plaintiffs themselves claimed is a heavily democratic district. the court remedy, demonstrates the reduction was to 45% and what did that do? it dismantled entirely district three and district four. took away about half the districts. justice sotomayor: what about compact? mr. carvin: well, it was to split it in half. justice sotomayor: it is contiguous not by water but by land and it runs a very unusual route. mr. carvin: it's reasonable compact of the virginia supreme court definition of compact whether the -- justice sotomayor: it splits districts. all of these plans have their
flaws. but the new one at least splits west districts and is more compact under traditional criteria. mr. carvin: it's only half accurate, justice sotomayor. it splits 14. that's what the special master said in his report. it is more compact but i want to re-emphasize the only way to make it more compact is to athlete district three in half and district four in half. it puts representative foshese in a 64% of a democratic district and the avowed purpose of splitting them in half is to create two black opportunity districts so it's more race conscious that's what the legislature did. justice sotomayor: can you spend a few minutes on whether this case is moot or not? the way i understand it, the vast majority of the districts of the representatives who are
party to this action have not been changed in any meaningful way. forbes is the only one who had a -- who had perhaps a live claim but he's decided to run in another district. so how do we have a live claim or controversy? mr. carvin: because what they did to representative forbes was to severely hamper and make impossible -- justice sotomayor: he decided him not to run. will rvin: let's say he -- justice sotomayor: would he run in the old district? mr. carvin: that's where he lives and has a 16-year incumbent. the fact that injury they imposed on him in district four it pushed him out. plaintiffs don't need to continue down what they were doing. this court has found that worst kind of injury is when the challenge -- justice soto may yor: are you representing that --
justice sotomayor: are you representing that if the map goes back to the old one he will run in his old district? mr. carvin: absolutely. he will run in the district he lived in for 16 years and has a incumbency. -- justice ginsburg: under the old district and we have a rule that district day is alleged gerrymandered. voters in districts b can't challenge that. you have to be a voter in the district that's allegedly gerrymandered. so how is it that a voter in district four could not bring the challenge? but the representatives of the district can? mr. carvin: certainly people in adjacent districts are injured, they are not under the 14th
amendment because their rsonal rights to incrimination. but we are a defendant appealing in adverse order. we're not saying it violates their constitutional rights. they're arguing it disrupts the status quo by changing the rule and that's what they're defending. this court has made it clearly in several cases that obviously if the remedial order puts the defendants in the worst position than they were, they have a direct stake in the outcome of the appeal and they can appeal. if the rule otherwise, justice ginsburg, no defendant could ever appeal an adverse order because the adverse order virtually never are alleged to violate their right. so it's precisely the same sort of injury suffered by representative forbes as we would be suffered by an incumbent who lived in district three. let's assume the incumbent in district three intervened and they dropped it 30% and made it a 60% republican district. is anyone arguing that that incumbent couldn't challenge the order that severely hampers
his or her chances for re-election? the answer is clearly yes. since representative forbes in thed a jacent district suffered precisely the same kind of injury as i hypothesized for the incumbent in district three by the analogy to hayes he has standing for appeal. >> what about brat? mr. carvin: i could argue that brat and wittman who are in seven and one also had their districts changed in a way. but i must admit the palpable negative political consequences are diminute tiff than those suffered by representative forbes. since i am abandoning it -- accepted for brat and wittman in one and seven. justice kennedy: normally the defendant is the state in a vote -- justice breyer: normally the defendant is the state in a voting rights case. these are interveners because
the court said you could intervene. now the state's gone. m looking for some kind of rule or some kind of workable standard such that a new plan would court puts in allow some people in other to be ts to remain defended but not everybody or do you think everybody? i mean, after all, a plan in a smaller state, it affects one district and makes changes likely affects people in every district. at least some of them. some people will find it easier to get elected. some harder. mr. carvin: i haven't found a case that supports you. justice breyer: but i will give you two. mr. carvin: one articulates the
burden in a nonelection context which is, do you suffer a threat to your current injuries because of the lower court opinion? and the best case actually one in applying that injury to hurting your chances for re-election. because the court found they attached the propaganda label to this california democratic legislators acid rain documentary that hurt his chances for re-election. the solicitor general said the word reputation, that's true but reputation was only relevant because it hurt his chance force re-election. if you look, justice breyer, there is not a scintilla of evidence suggesting that his reputation was harmed. fter all -- sorry. justice breyer: and the split district that you were talking about, representative forbes,
if he has standing, who doesn't? mr. carvin: well, the standard is meets v. king. the fact is that this california democratic legislator running an acid rain documentary said he was hurt because him and the reagan justice department labeled it propaganda. that's not a severe harm. justice breyer: in the voting context, the standard for saying that a person in another district is hurt enough to be standing here and these people aren't. hich ones are and which ones aren't? mr. carvin: harmed his chances for re-election. justice breyer: harmed his chances for re-election. mr. carvin: use whatever adjective for harm. he had a district he easily won for 16 straight years into a 60% democratic district -- no republican has ever won.
[speaking at once] justice sotomayor: we had a change that it gives the incumbent the right to challenge the blind change. mr. carvin: anytime somebody is injured in fact -- justice sotomayor: this is now an incumbency protection rule? mr. carvin: no. justice sotomayor: every time it changes and you think it hurts you you have the right to go to court and say what? mr. carvin: i want to quibble with the premise, it's not that you believe it hurts you, it's undisputed that it hurts you. justice sotomayor: that's the rule. do you have a right to claim? it's one thing to say, i am a voter and i have been racially discriminated against. what is the incumbent claiming? it's not racial discrimination
against? mr. carvin: that it has hurt dramatically his chances for re-election. justice cagan: we have this other -- justice kagan: we have this other rule, there needs to be a kind of legally recognized interest. so it's not just that you have in fact but jury there needs to be a injury to a legally recognized interest. so what is the legally recognized here that the legislators are banking on? mr. carvin: he wants to be elected. justice kagan: that's he wants to be elected, he has been injured in fact in the kind of practical ways we can all understand to be injury. but this other part of the test have a uggests that you legal recognition of claim and
that's what i'm searching for here. mr. carvin: two points. nobody is arguing they have a right to these districts. if, again -- appealing defendants have to have a right then nobody would be able to appeal because they're never arguing that the adverse judgment deprived them the legal right justice kagan: are you saying that part of the standing doctrine that there is a legally conniceable right is only good for plaintiffs and once the inquiries shifts to the defendants it drops out of the picture? mr. carvin: to recognize the difference filing a complaint challenging a state's law and a defendant who's defending the state law who's obviously not going to argue that his legal rights have been violated, he has the same interests of the people that are supposed to be defending the state law which is he's well benefited under the status and he suffered direct injury in fact because of the alteration clause by the remedial order. justice tion -- will
kennedy: he suffered injury to what? mr. carvin: to be elected. a host of cases -- justice kennedy: it's a right to assert a legally recognized interest in being re-elected without, i don't know, improper interference or something like that? mr. carvin: not having a state entity, a federal entity, intervene over the prerogative of the state and creaktcreath and electoral state which diminishes his chance for re-election. why is that not injury in fact? it was injury in fact -- justice kagan: i wasn't contesting the injury in fact requirement. i think i was asking about and it really is a question how this other separate requirement which is that the invasion of -- has to be to a legally protected interest applies in the context of a defendant? and you're just suggesting it
drops out entirely and i guess i'm suggesting -- i might be right but it seems odd that a plaintiff would have to show it and a defendant, it just disappears from the inquiry. mr. carvin: may i clarify? interest. o show and it's not a constitutional or statutory -- justice kagan so the legally cognizable is, just finish the sent for me. mr. carvin: he wants direct stake in the outcome -- justice kagan: that makes it the same as the injury in fact requirement. mr. carvin: i apologize. i want to eliminate any confusion with justice kagan. why would all the harms in society harms to re-election not be legally cognizable. it is to keep the federal judiciary in the proper limited
role in democracy. if two unelected judges falsely altered the state sovereign's view of redistricting, that would be the situation we would want to find the injury most cognizable because that's where the court exercises extraordinary caution and extraordinary -- i apologize. >> there's the question of injury and fact which you are talking about. does a member of congress who wants to be re-elected have a legally cognizable interest in running in a district that was lawfully enacted by the state legislature? mr. carvin: yes. he certainly does because obviously the interveerns -- you have to accept as true for standing purpose, the improper interference of the federal judiciary into that political thicket which harms him and rearranges the entire districts is obviously injury in fact and just the kind of interest that this court would want to find cognizable because after all, it's most concerned about the
federal judiciary hijacking the political process -- justice breyer: normally the plaintiff is suing because somebody did something to him. so the defendant is the person who did it. and normally we are looking for the standing of the plaintiff. and there are all kinds of rules there. the person who did this to the laintiff is the state. they are not in it any more. the difficulty comes from the fact the congress aren't the people who did it. these particular people aren't the one who is did it, but they are still in the case. it's rather like smith sues jones for a nuisance. there's an order entered. it is an injunction. his neighbor brown says this injunction is hurting me.
now, does brown have standing? and at that point we are into a new kind of a case and i'm sure there is law on it. and i just haven't got the right things yet. and these cases that they have -- they'll have language, i'm not certain how to analyze it. mr. carvin: talk about incumbency protection generally. compared to incumbents. this court found that justice brennan said that kind of political jerry gandering imposes such a political injury. mr. larr i. os, they said that kind of injury is a classic tool of political gerrymandering. is it conceivable that incumbents would have no standing to challenge the fact that the court has put them in the same district? your honor recognized that incumbent protection is no different than combatness or anything else.
which gives incumbents factual distinctions from the run of the mill people. in term limits vs. thornton, this court held it was unconstitutional to make it more difficult for incumbents to be re-elected because they engage in mailing campaigns. we are talking about a well recognized constitutional right where incumbents are not similarly situated to average voters and do have very different factual interest. if it is undisputed as it is that the sole reason that representative forbes is now facing doom in district 4 is because of this order, i can't understand any reason why the court would sit back an allow the federal judiciary to hijack the most intentionally partisan kind of litigation we have. >> can i take you back to the merits? let me give you a hypothetical, not this case. different case. justice kagan: let's say there mappers and say say we want to segregate
african-americans. so -- they say that's our first aim. but we also have a second aim, it turns out that african-americans vote in a particular way and so our second is that we are going to achieve some kind of partisan advantage as a result of this segregation. what should be the right answer to that question? is there strict scrulet any in such a case -- scrutiny in such a case? mr. carvin: in alabama they had an absolute where you could argue were trying to segregate. this court didn't say ipso factor, all majority district inal al alabama, it said did that racial purpose have some kind of a -- justice kagan: you are making my hypothetical more than it is. this is one district we are going to segregate all the african-american voters in this
district. we are doing that primarily because of racial reasons. we don't like african-american voters. we are just going to heap them all in one district. secondarily, that has politically beneficial consequences for us. so the question is, is that unconstitutional because, you know, if i look at that i say, ok, race was your primary motivation. that's for district scrutiny. you fail strict scrutiny, are you out of the ballgame. but you suggest you are not out of the ballgame because you have this secondary interest which coincides with the clearly racist conduct. that's the question that i want you to answer. mr. carvin: if it coincides and is a motivating factor like it was here, then obviously you need to so that race was the but for clause of any 58 teration of district line. you need to so it subordinated the neutral principle and need to show to quote alabama it had
an effect -- justice kagan: it seems to me you are changing your argument because in my hypothetical both these things run together. their not in conflict with each other. are you saying the critical question is not conflict. i thought the thought the critical question was conflict. rather the critical question is which is the pry harry motivation or which is the but for purpose and which is the secondary motivation even if both run in line with each other. that's a different kind of test. mr. carvin: i'm happy to clarify. if they are completely could he extensive. if as here the only way to accomplish your incumbency protection and political purposes was doing race repre-dominated, it can't be the but for clause. justice kagan: it is very clear, just as it is in this case, i have to say, they have a list of criteria. number one on the list is race. and then we have a lot of direct evidence in my hypothetical that
this is for the most heinous racial purposes imaginable. and the question is, does the fact that it also has political benefits, if that insulates these line draws from what you would think is the obvious conclusion which is, this is unconstitutional conduct. mr. carvin: in every context, gross, even outside of cases where plaintiffs have a special burden show is race rather than politics, even in those cases, you need to show the fact was the but for clause of the challenged action. justice kagan: he says this is our first priority. mr. carvin: yes. every legislature in every court has ranked the voting rights act higher than other things because they all recognize the supremacy clause -- justice kagan: in my hypothetical it's a first priority because he used a racist line drawer. mr. carvin: let's assume he picked 55% and wanted to make that a top priority.
does that have any effect on district lines? if it is indisputed and clear as here f. they had drawn the district presleist the same way protecting the incumbent and politics, if you diminish blow that to 50%, we know to a certainty because plaintiffs have proved it to us, that that would -- justice kagan: it sounds to me it's a harmless errrory rule for racial discrimination and never had a harmless error rule for racial discrimination. what we said is we just found a racially discriminatory purpose, end of case. mr. carvin: what you found in cromartie, it's not harmless. you need to show but for causation or effect as they said in alabama. cromartie held as a matter of law the fact that there was racial percentages, lack of compactness, breaking of county lines, insufficient as a matter of law to find a violation. why? because there is an equally plausible explanation which is politics. it is the plaintiffs' demanding burden to prove race rather than
politics. >> can i ask a question which is -- justice alito: if it were not the voting rights act, there would be a simpling answer. can you not take race into account at aw. it's invidious discrimination to take governmental action on the basis of race. does shelby county have any relevance to this case? is this the type of case that will never come up again in the future if the voting rights act is not amended? mr. carvin: you need not worry about this in 2022. but the issue here is what was the right confronting the legislature in 2012. they had to get preclearance by the justice department in record time so they needed to get very quick preclearance which is why it made good sense not to go below the statutory -- even if we assumed to get back to justice kagen's question, it still doesn't establish a violation because this court said countless times race is always factor in predistricting.
it's not employment and other context. here's what the court said in cromartie 2 and the lower court completely defined. it said in a case such as this one where majority-minority districts are at issue and where racial identification correlates highly with political affiliation, the party attacking the legislative drawn boundaries must show the legislature -- justice kagan: the first seven words are in a case such as this one. the question is what could they mean by that? one understanding they meant when they said in a case such as this one, is in a case in which there was no direct evidence of racial motivation but only circumstance evidence. and that the absence or the presence of a map was indeed relevant to the question of what did that circumstance evidence added up to the conclusions that race was the motivator.
mr. carvin: i must respectfully disagree that's remoteable plausible interpretation in this language n this case such as this one, comma, where racial identification correlates highly with political affiliation was somehow sending some implicit signal what we went was -- justice kagan: such as this one. the case before us. mr. carvin: the beginning said -- justice kagan: why didn't we ask for a map in alabama? mr. carvin: the court said remand find out which districts were affected by it. under this theory all 35 districts in alabama, all majority black districts are ipso facto violations of shaw. by the way every majority-minority district in the courtry is ipso facto violates shaw because every court that he granted one has invoked the supremacy of the voting rights act. that's not what the court did. the court said go back and figure out if race had some significant effect. it didn't say go turn all
majority black districts into 45% black. that would be the great evil accepting this rule. that is why the court has been so insistent that race rather than politics, particularly in states like virginia, where race and politics were so co-extensive. without further questions. justice roberts: thank you, counsel. mr. rafael. mr. rafael: the district court did not say they were predominated because ample evidence supported the district court's findings there was 55% v dap floor that was used to move 44,000 african-american voters. >> you thought it committed error, right? mr. rafael: our office defended this district at trial. we thought there was conflicting evidence whether race or politics predominated. district court resolved
those factual issues against us. becaused of standard -- chief justice roberts: if you were taking a considered position at trial is that the districtor was wrong, you presented the fact and you defended those facts, under your view, and then on appeal they overturned it and you say, ok, they were wrong, but not clearly wrong. there's nothing wrong with t mr. rafael: that's right. the evidence supporting the district's finding was sufficient under the standard. it included the sworn export report by our own expert that conceded there was a 55% floor. that's page 518. >> did anything else happen between the time your office took the prior position and your appearance here today? mr. rafael: you may be referring to judge payne's surprise. justice alito: was there anything relevant that happened? mr. rafael: our administration came into power on january 20. we defended the district on
summary judgment and at trial. the same career attorney argued it at trial when the district court ruled against virginia we had to evaluate whether we could win on a clear error standard and concluded we could not. in addition our own experts' sworn report said there was a 55% floor, virginia's section 5 submission reford a 55% threshold as well, that's page 77 to 79. >> which expert? mr. rafael: john morgan, page 518 of the joint appendix. you'll see his sworn report where he refers to 55% floor used in the house of delegates restricting. he actually served as a consultant to the republicans in the house of delegates and served as an expert here. >> it was also one of your experts that said if every person involved in these swaps were white the results would be the same. mr. rafael: john mcdonald, who is the plaintiff's expert, he was asked can a lot of these swaps be explained based on
politics? he said they could be with the exception i would say the plaintiff's exhibit 57 which showed there were five. page 439. it showed there were five voting districts that were dropped from the benchmark district which had lowe 55% but they were very v dap. chief justice roberts: would there be a violation here if the district that were drawn could be explained on the basis of part znship rather than race? mr. rafael: if only evidence were statistical, just like crow marty, it could be explained based on partisanship, you're right. we would have won the case and be defending that here. what really killed us was the morgan -- our own expert's report that said there was 55% floor. there was other evidence there was a floor. the district court did not commit clear ir roar in finding that was the driving factor heemplet chief justice roberts:
it was a question i asked mr. carvin. are you talking about the mowive of the legislature. what do you do when it's 10% race, 10% partisanship. as is often the case, 80% don't say anything ought all. mr. rafael: it would be harder if you had that case heemplet in this case there was one sponsor. he said the v dap had to be at least the same, and then he said in order to have certainty of preclearance, we need to bump it up to 55%. chief justice roberts: you say i understand that. i suspect most looked at the map and said how am i doing here? what's the percentage of republican, democrat, what's the change? they may not have cared what the sponsor thought about it. mr. rafael: i think there my may be two ways to look testified. there was the way the district court did which is to say there was a 55% floor. did politics trump that? no. as justice ginsberg pointed out, the sponsor said i didn't do a partisan analysis that wasn't a factor. on that scenario the district
court didn't commit clear error in saying there was a floor. politics didn't control. that's a simple case. the harder says is the one you're describing where people might look at this 55% floor and say this is good for republicans. i'm going to quietly go along with it. but in that sense race being used as the proxy for justifying the plan. i don't think race can be used as a proxy to justice kennedy's point. nor the excuse. that's how it was used here. the other evidence included statements by the members of the house and senate in the house of delegates redistricting at page 533 and 527. there really appears to have been a mantra there has to be 55%. senator bolden said that. the lowest d.o.j. will preclear is 55%. that's page 533. then the statement that the most important factor to him was obtaining preclearance.
justice ginsburg: was there a basis to the legislature who said the department of justice won't accept it if we go below 55%? was this something he made up or does he have some basis? mr. rafael: the record has not showing where that number came from. it shows that this district was precleared previously at 53%. and at 50%. the senate, virginia senate districts were precleared at 50%. >> are there districts in other states or cases where it is 55% or 60%? justice kennedy: or is that high? mr. rafael: i don't know the answer. the record shows that d.o.j. precleared a district as low as 33%. that's page 205 of the joint appendix. in something sfpblgt i agree with mr. carvin it's not enough to say we are complying the sprorks r.a. when you say we have to comply with the v.r.a. and the way we
do thats is having a 55% floor, the trial court does that right. once we lost the issue of repredominating, that was the end of the case. we didn't put any evidence, mr. carvin put no evidence in to justify narrow tayloring. it simply i want there. congressman scott had been elected by huge margins, 70% before this plan was altered. after it he was elected by a margin of 81%. our own defense witness said he wasn't offering an evidence on the at this lorg. i would like to address the standing issue briefly. it's not in virginia's interest or any state's interest for an intermeddler to prolong litigation like what's happening here. we looked at the law and we read that standing for the proposition that we are an intervenor can argue injury to his election opportunity that. is adequate for a standing. in this case it's true. congressman forbes, the fact he had to switch from cd-4 to cd 2
does prove the injury. and the special master found his district would go from 48% democratic to 60%. i think that suffices to prove the injury. >> niece was the case, was that the case involving the lobbyist. mr. rafael: the california senator who wanted to show a canadian film. justice breyer: ok. harm to reputation. i see that. if this is a sufficient injury, the injury that now the plan will make it harder for me to be elected, that should give rise to a claim by virtually every member of the state legislature. and indeed if it gives rides to their claim in their hands, why not the voters? you have a state like virginia several million people who could attack any redistricting plan and any variation on any redisdis tricting plafpblet that's quite a lot to read.
mr. rafael: forbes has a special just at this -- justification. justice breyer: it's because it's more severe in degree. mr. rafael: others like wittman's -- justice breyer: the closest you can come is the case of a lobbyist who is complaining about his reputation. mr. rafael: he was a state senator. justice breyer: is there anything better -- mr. rafael: the government argued in that case damage to reputation -- candidacy isn't enough because it depends on the actions of voters and third parties. not one justice dissented from the holding in niece that injury to candidacy was an adequate -- article 1, 3 injury. and clapper referred to standing
for the proposition of impairment of political career. we read that case. looked at what the government say. we think it gives them standing. are we happy about it? no. we don't want intermeddlers to prolong litigation. but they -- we think they do have standing. justice breyer: do you think it's care to characterize forbes as -- mr. rafael: i couldn't mean to disparage him. chief justice roberts: his political career for 16 years. hank you, counsel. >> mr. jeff tusstiss, may it please the court. the state of virginia has twice decided not to appeal deet significance below. this court has said in several occasions and most recently in hollings worth it has never upheld standing of a private party to defend the
constitutionality of a state statute for the state itself has not chose to do so is. mr. elias: this is not the first time the court should venture into this new ground. the fact is that in -- under the american system, voters choose candidates. they choose their elected officials. it is not the other way around. i listened intently to the arguments of counsel and the fact is this is not a question of what they did to mr. forbes, it's a question of what the state of virginia did to the voters flute the commonwealth. including in the third congressional district, the second, and fourth. candidates win and lose elections for all types of reasons. it is not true that it is conceded that partisan performance is the be all end all like one wins or loses an election. the lead intervenor in this case flirble was congressman kantor.
-- cantor. >> i don't want to impugn mow tiffs of the -- moat yifts of the commonwealth of have a. justice alito: if it were the case the state decided not to defend the legality of a districting plan that was adopted by the legislature, that decision was made purely for partisan reasons, you would say that a -- an elected official or candidate who was severely adversely affected by that should not be able to challenge it? mr. elias: that's correct. not every injury in our society opens up the courthouse door. as the colloquy earlier discussed there has to be legally protected interest. members of congress do not have a legally protected interest to choose their voters. justice alito: again, this is not-dirnl' not saying this about virginia in this case, but what if it were the case that
decision was made for a racist reason? what if the reason for not defending the legality of this --districting plan was a racist reason on the part of the state executive? you would say that adversely affected member of congress or candidate would not have standing? mr. elias: that's correct. members of congress don't have a legal interest in choosing their voters. it's worth looking at the supplemental briefing and the briefing on the standing in this case. to illustrate why the injury ere is not just -- not legally protected, but entirely speculative. the state of virginia in their initial brief when we were asked to brief the question of standing said that there was no particular congressman that had standing at that time. that one may soon reveal itself. several days later they filed a case saying they now revealed
themselves the congressman standing is congressman rigell. it looks like his district will be affected. a month later said it's not rigell. it's congressman forbes. this court has said one needs to have standing in every stage of the proceeding. these plaintiffs needed -- these apellants needed standing at the moment they filed their appeal and every stage thereafter. >> if the state had a plan designed to protect incumbency, and it did not do that, could a voter object to the fact that the incumbency rational was not followed? justice kennedy: knowledge interest on the part of the legislature, but -- mr. elias: two answers. i don't believe an individual voter would have anything more than general reasons. number two, it's worth noting -- justice kennedy: you have an acknowledged interest on the part of legislature, but that
the fact that the plan fails to accomplish that nobody can object? mr. elias: it is interesting in this case neither the virginia statehouse nor virginia state senate, both of whom controlled by the same party as the members of congress affected, neither body nor the legislature as a whole has chosen to intervene in this case. which is quite different than in the arizona case that this court handled -- resolved. justice kennedy: under your view could the legislature -- mr. elias: i think they could have and would have a bert claim to standing. again under the arizona reindustries ticting case -- redistricting case. justice kennedy: the legislature who passes the law has great standing? mr. elias: we all are affected. all virginia voters are affected by the law. and members of congress have to -- the apellants in this case have to do better than that.
they can't just say they are affected by the law. they have to show why they have a legally protected interest as justice kagen said. justice kennedy: it sounds to me like incumbency which cannot be protected. why can't the whole legislature assert it but not one? mr. elias: one thing i want to clarify from the record. it is not the case that we have concede nor is it the case that the court found nor the underlying facts of the case that the virginia legislature endeavored to protect incumbents. what mr. was said was quite specific. did he not want to pair them. did he not want to draw their houses out of their districts that. is quite different than saying that the virginia legislature had a policy of protecting incumbents. the only way to protect incumbents would have been to use partisan data or race as a proxy the second of which would be inconstitutional.
>> you say race as a proxy. if -- this is why easily i think is so important. chief justice roberts: the way you check is come up with a district that would achieve the same partisan objectives without respect to race. and you weren't put to that test in this case. mr. elias: i think that is true in the circumstances in a case such as cromartie. where the evidence, the direct evidence that race predominated was quite weak. in fact, it arguably the direct evidence went the other way. suggested that politics was what drove the map. 8 the court was evaluating what do you do in a circumstance where there is no direct evidence that race predominated, but you have circumstantial evidence that maybe it did, maybe it didn't. in that case, one way to tease out whether it was partisanship or race is to say, ok, show me the map that teases that out n this case we have no need to
tease it out. >> it makes it -- you have a greater degree of confidence if you have an alternate that said, look f. they wanted partisanship, which is a high priority for politicians, if they wanted partisanship, they would have done this. chief justice roberts: instead they did this. if you are not forced to show that then you have reliance on however many quotes you can find. i get back to the question i asked before. how do you an aolize it if it's 10% race, 10% partisanship, and 80% who say nothing? mr. elias: in this case as a factual matter twarks the person who sponsoreded the bill. the person who drew the map. jeff chusstiss roberts: he wasn't in the -- chief justice roberts: he wasn't in the slumplete mr. elias: i believe he was. chief justice roberts: i thought the person who drafted the plan, maybe i got that mixed up, it
wasn't janis, was not in the legislature? mr. elias: janis says that he, i believe, said he drafted the -- we may be talking the statehouse plan versus the congressional plan. in any event, the enact is that if you look at exhibit 57, which mr. rafael pointed to, what you see is that professor mcdonald did a very important calculation. what he looked at is the voters that were added and the voters that were taken out. and what he found is that the voters being added were much higher protensity -- propensity, higher pestage of black voters, than they were democratic. so he found to use a colloquialism, he found the blackest parts of the voter pool and added them and skipped over white democratic voters instead.
the differential was about two to one. in fact there was an analysis that teased out based on statistics. chief justice roberts: you think you could have drawn a map under cromartie that would have show if you wanted to protect incumbency and republican democratic advantage, you would have done this instead you did this? mr. elias: i don't think the question is whether we could have drawn a map. the question is whether or not cromartie requires in a case where -- chief justice roberts: why isn't it? -- justice kennedy: that race can only draw a map? mr. elias: as mr. rafael suggested, the analysis was involved a handful of e.t.d.'s, which are essentially pre60's. we could have 30e tensionly -- potentially drawn after that
analysis a district that made few changes. don't think that's what cromartie had in mind. i think it had a circumstance where are you not using race as a proxy and drawing a significantly different district raceshows that race and -- predominated over partisanship. in this case the use of these were to get at something different which was the intent of what the legislature had in mind. >> let's not forget there was -- you are skipping over it. justice sotomayor: it might have been slightly different, it still was going to be different if you had not used race. that's the whole purpose of the exercise, correct? mr. elias: correct. justice sotomayor: if you're race neutral, you move not on the basis of skin color but some neutral principle. and you have shown that in in at least five predicts were moved where it wasn't on the bay siffs partisanship. it was on the basis of race.
mr. elias: yes, your honor. >> if you move those then you have to move other districts to make up for it. again i think that's what cromartie does. chief justice roberts: we don't have to speck late. what you have to show is partisanship could not have benefactor because you couldn't have drawn it differently without affecting partisanship. mr. elias: i think our burden was to show that race predominated. i don't think cromartie puts a fact in on miller and vera to say that the only way -- or shaw that the only way you can do that is through the alternative. >> if race and partisanship are co-extensive, which one predominates? mr. elias: in the case -- chief justice roberts: if case and partisanship are co-extensive, you may say it's an abstract question. it doesn't fit these facts. but if that's the case, which one predominates? mr. elias: if you had a
circumstance if there was no other evidence other than these two factors, race and partisanship, then essentially it's a tie. then neither predominated. chief justice roberts: who loses if it was a tie? mr. elias: there is no ty. there is nothing close to ty. we would lose it. the legislature set a 55% threshold. >> suppose the legislature had set the same number as what is referred to as the benchmark. suppose instead of making it 56.3, they kept it at 53.1. exactly the same as in the prior -- mr. elias: if it was done as a mechanical threshold, then it would be subject to scrutiny. the state would have to show it met that burden. any time the state sorts people based on race in a -- using mechanical targets or thresholds
in the redistricting context, then they would have to show that there was a very good reason for doing so. >> is that what you're making it on? do you agree with the solicitor general that a simple statement from the line drawers that they were trying the best they can to comply with the voting rights act? justice kagan: that that is not sufficient to have strict scrutiny apply? mr. elias: i think this court in alabama made it clear that the fact that the state of virginia may have been under the mistaken belief that it had to go to 55% -- justice kagan: i got that. assume a different set of facts where they weren't just saying we have to stick at 53.1, or go to 55.55%. assume a different state of facts where line drawers simply say of course our first priority
is to scomply with the law. do you think that striggers strict -- mr. elias: no, of correspond not. the fact the state of virginia knew it had to comply with the voting rights act -- justice kagan: it's the use of a mechanical target. not related to the ability to elect. mr. elias: correct. if you look at what the professor did as the court special master, you can see he did a very thoughtful analysis weighed all the traditional districting criteria. then looked at the impact that it would have on the ability of african-americans to elect candidate of choice. and that is a model of the kind of analysis that the state of virginia should have engaged in but didn't. it said the district was 53.1. if we go under 53.12, we are breaking the law. let's go to 55 because that gives us certainty rather than a lack of certainty.
so 55% it is. >> thank you, counsel. mr. justice roberts: geshenhorn. a identified' like to make two points on the merits but i'd like to start what this court going to start were standing. we agree apellants lack standing to peevement they allege the district court judgment may cause them harm by adding voters to the district of a different political party who may vote against them. but candidates have no legally cognizable interest in the particular composition of the voters in their district. >> is that true when the legislature specifically has adopted incumbency protection as matter of state law or policy? >> your honor, i think if they had adopted as a matter of state law incumbency protection, that might be different because the legislature would have established that actually as a legally cognizable right. but that is not what's at interest here. if i could say, your honor, with
that -- what's at issue here is whether a candidate has an interest in a particular composition of his voirts. we think your honor's own solution in lulac is quite instructive on this. your honor said is congressman bonilla had alleged the allegation was that the latino votes were no longer voting for congressman bonilla. that was why they rekiss tricted -- redistricted. what your opinion for the court said there is that kind of voter frokes, which is for the candidate and not for the individual voters, is fine for the realm of politics. but it did not justify the -- could not justify the action there to save it -- >> district five in the state which is heavily african-american. justice breyer: imagine racist legislatures changed the whole district so they couldn't possibly elect a african-american, does the african-american member of congress have standing to
contest that? >> a voter would have standing to contest it. a candidate would have standing to contest it if he or she was a voter in the district. under hayes -- justice breyer: as a congressman not? >> remember what we have here is a different situation where you have a candidate justice breyer: i understand there has been no case which discusses this that i have been able to find. they have the niece casecy -- which is in -- case which is in a different context. what's bothering me about t. i don't want you to say i'm right, i want you to explain if i am why i'm wrong is that there are potentially dozens of remedial .lans stwhrr hundreds of possible plans for a statement every plan will hurt someone. if one district in a state is changed, suddenly you open the door to every legislature and
every congressman from every other district challenging the plan, that strikes me as a big shift in the direction of taking power from the legislature and turning it over to the judges. as to what kind of districting plan you're going to have and a mess to boot. >> i think you're right to be worried. justice breyer: i nye you thought i would be. >> i do think there are a couple of resources that i do normally rely in that instance on the state to be the principal defender. when the state's not there, what this court recognized in hollings worth, that they'll -- undefended. the reason why we have to be careful about legislators and why choosing their own, we don't let legislators choose their own voters. there's good reason for that. that's not the way the system works. i do think it would have quite
expansive effect. it's not clear to us there is a huge difference between this kind of line drawing and a challenge, for gample, that a legislator might seek to apete relocation after base or university in his or her district on the grounds that would radically change the number of republican or democratic voters in the district. i was going to say we think niece is different because meese not about choosing the voters in the district. we are not saying that you don't have an injury, article 3 harm, harm to the leaks, we are saying you don't have an interest in vindicating that right for choosing the voters in your district. >> i guess i find this harder than you suggested because this is not representative forbes saying i want to choose exactly the set of voters that's going to increase my own electoral chances. justice kagan: this is him saying, look, there's been an act of the legislature and the act of the legislature has given me a certain set of voters.
why don't i have a legally cognizable in relying on that legislative judgment when some court has taken it away? >> i think it's for the same reason this court rejected that idea in -- i think there is -there isn't a cognizable interest among the voters or candidates in just seeing that a lawfully legislative districting plan is enacted. otherwise i think every voter in the state would have standing because the said you should be in this district. that's not the direction of court has gone. i do think the combination of viewing the office as one that the office holder gets to choose -- the constituents and the potentially broad impact of that is one that should give this court some pause. particularly, just to pick up what plaintiff's counsel was saying, i think particularly in a situation where you have a state statute and this court's
observation, it would be quite unusual to find standing here. if i could switch over to the merits very quickly. a couple of points. i wanted to start with the observations of justice kennedy and justice kagan on the could have, would have standard that mr. carvin has put forth is i understand the district is ok even if based on race as long as it could have been drawn on the basis of politics or would have been. we think that flies in the line of cases. what the cases are about at core are two principal things you can't use race as a proxy, and you can't sort voters on the bay siffs race. when you do that it is not a defense to say coy have done the same thing on the bay siffs politics. you can send it back. if the legislature does the same thing, taking race out of the equation, then, fine. the injury that the shaw line of cases was designed to get at was eliminated. the would have or could have
that mr. carvin has put forward is quite add odds with this court's juries prudens. >> people objected to some extent that cromartie cut back on shaw and miller as well. chief justice roberts: i would feel much more solid ground if the plaintiffs had been put to the test of saying show us. they say this isn't about part znship, this is about race. show us. you draw the district that would protect the partisanship interest that's going to be different. yet the lower court did not subject them to that inquiry. >> we think cromartie is a very important case but actually quite the exact opposition of the situation here. we think cromartie is the situation in which the legislative -- there was direct and substantial evidence that the legislature acted on the basis of politics. statistics were put forward that said it's equally explained by race. what this court said is basically a thumb on the scale for politics at that point. to give the state legislatures their room.
but in a situation like this where there's direct and substantial evidence that race was at issue, that same evidence that is equally consistent with politics just doesn't cut it. >> there's evidence that race was at issue. i will give awe chance to answer the question i asked each of the others. chief justice roberts: i wouldn't want to deprive you of that opportunity. you are looking to see whether race was the mowive. what do you do if as i said, 10 say yes, 10 say something else, 80 don't say anything. how can you say the motive of legislature was this or that the? >> it's obviously a difficult question. two things on that. first, this court's cases have been fairly unanimous in looking to the intent of the drafter. that's what they look to in bush v. vera. in alabama this court has a policy and didn't look to see whether each of the legislators individually had embraced thatpolicy. that was something that the court accepted. i think there is a long line of case law.
second, it's not sole lith intent of the drafter here. there are objective indicators which this court has indicated in both shaw and miller are extremely important. things the court looks to, such as compactness, are counties being split, that reinforce that kind of intent. those are things that are open -- that are a part of the plan that was enacted by the legislature. >> what in the drafter or other members of the legislature say race was our first consideration. justice alito: by that we have to take race into account under the voting rights act. that's what we have done. what would be the result there? >> i don't think that that necessarily results in strict scrutiny. what this court has said over and over is that the -- race must predominant. the consciousness of race is not sufficient. we think that makes sense because as the court said the
redistricters are always conscious of race and always aware of race. nd that legislatures need room to maneuver. so the mere fact that conscious of race or even that race intention sally use race is not sufficient by itself to have strict scrutiny. >> thank you, council. mr. carvin. mr. carvin: aid like to begin with justice kagan's questions. we have heard constant theme if we have done it because of race a post hock political just at this case does justify it. we have a mixed mowive case -- motive case. that's what the district court said. the only reason race was ranked higher was because he said that it was a federal mandate under the supremacy clause. if that's not a justification, then they committed legal errrory. you turn to 33-a why was politics and incumbency subordinate? they told you. because that quote was permissive and subordinate to the mandatory criteria with
clines with the v.r.a. they say they implemented it by not reducing the benchmark, but that had nothing do do -- to did with the rank. to get to your question -- >> isn't that what we confronted in alabama? which is a number one priority was the v.r.a. justice kagan: they they turn -- then it turned out they misunderstand and the number one priority was racial quota which had nothing to do with the way the v.r.a. is supposed operate mr. carvin: that's fine. what we are trying to figure out here whether or not there is a prima facie case. arsume me with it was completely color extensive, they didn't assert politics, but county lines. would you say race predominated over something or subordinated something when they are entirely co-extensive. gactness is number two. county lines three. you draw a nice compact
district. no one in their right mind would say compactness predominated over county lines because the same result was orr zained by these mow tiffs. you can search this opinion for any -- motives. can you search an opinion for any kinding that it was subordinated to politics and you won't find it. therefore they haven't made their basic burden of showing that traditional districting principals were sword nated nor the specific cromartie 2 burden showing it was subordinated to race rather than politics. the only evidence they tried to come up with at the last minute was joint appendix 439. this is the analysis done by mcdonald. it has exactly the same flaw this is court rejected as a matter of law in cromartie 2. why? because the racial effect is identical to the political effect. he made a big deal about the fact that there was a 16.5% gap between the v.t.d.'s in district three and those outside in terms
of race. what his own index shows on ja-439, there was also a 16% gap in democratic percentages. it's exactly the same flaw that was at issue in cromartie 2 is here. unless this court is preparedle engage district courts in naked define of cromartie 2, this case needs to be reversd. as to the direct evidence point, what was the direct evidence in cromartie 2? partisan and racial balance. the court said as clear as possible since he said partisanship and race it says little or nothing about the relative predominance. what do we have here? incumbency protection, politics, and race. therefore the direct evidence says little or nothing about the relative predominance. what you need to do is to show they could have accomplished their legitimate political objectives in some other way. as the standing i heard the slogan repeet 3w50eud all my
opponents, voters choose representatives not vice versa. that's a lovely slogan. the relevant point here is that state legislatures choose which districts those voters go into. not the perfectly judiciary. if as you must assume the federal judiciary exceeded its proper role and created a system which hurt the incumbents who were defined -- designed to be protected, how could they not have a legally cognizable effect. justice roberts: thank you counsel. economies kase is submitted. >> congratulations fun fun -- [captioning made possible by the national captioning institute, inc., in cooperation with the united states house of representatives. >> your choices will make all the difference to you and all of us. >> don't be afraid to take on cases or new jobs. r new issue. >> respect your summer abroad.
on real ships rather than internships. and respector of living at your parents' basement after this graduation day is not likely to be your greatest concern. >> throughout this month, watch commencement speeches to the class of 2016 in their entirety from colleges and universities around the country. by business lireds, politics -- politicians, and white house officials. on c-span. >> the house returns today at 2:00 eastern to start off their final week on capitol hill before the memorial daybreak. today a work on number of bills including re-authorizing funding for intelligence programs and another on 9-1-1 emergency verises. tomorrow they'll take up the second appropriations bill of the year. spending on energy and water projects for 2017. also on the agenda, a measure dealing with federal oversight of toxic commercial. the hill gaveling back in in about five minutes.
a week ahead. we spoke earlier with a capitol hill reporter. us, we have a holk coming up. what is the workload like for congress this week? guest: good morning, pedro. is relatively light, congressionally speaking. leaders do you want to wrap things up before the memorial day recess, as you said. there are some adjudging things happening on the committee level. in the senate, they are going to spend almost the entire week on a big defense bill, a $602 billion bill, this is one of those big packages, there will be hundreds of different amendments on it, mitch mcconnell, the majority leader wants to get it wrapped up before memorial day. the big thing to look at here is john mccain, he is the chairman of the committee with jurisdiction, and he wants to lift the spending cap and raise at six under $2 billion number he said by at least $17 billion more, congress passed a big
budget bill last year that set the limit, he wants to lift it. there's going to be a partisan fight there. the democrats don't want to lift the cap, they want to hear to the budget deal they passed. lift theamendment to spending cap did pass with overwhelming bipartisan support in the committee, it was 23 to three. support on the can the level. that is not as early going to translate to democrats on the floor. that will be an interesting element to see. can mccain left the cap? there are also a couple of other provisions in there that will be controversial and fun to watch. one is with guantanamo, obama has wanted to close that for years. democrats support him, but the republicans do not. the do not want them to transfer those presented to the united states, so there's already some linkage in there that limits obama from closing the prison. republicanahoma
wants to make those restricted even tighter, so he's expected to offer amendments that will be closely watched. women in thing is the the draft, should they have to register? we haven't had a draft in decades, but men of a certain age still have to register for it in the event that it is reinstated. women do not. there's been this push to have them register as well. for number ofial reasons, but there was an amendment that passed in the a $610ast week passed billion defense bill that would have to be reconciled with whatever the senate comes up with. but they included requiring women to register, and mccain and mcconnell both support that provision. it will be interesting to see if people try and take it out. there was a push in the committee to try and take it out, and it failed. we expect to see that on the floor, that will be interesting to watch there as well. host: on the house side,
summarize what goes on activity wise? and give us a brief sense of the hearing for the irs. that one start with tuesday, the has to do share a committee is going to have its first examination, they want -- ofa move towards impeachment virus commissioner john koskinen. this is a years long push, but more recently, a number of conservatives in the house, the freedom caucus met with speaker paul ryan and said listen, if we don't get some earrings on this thing, we are going to force a floor vote, and that puts ryan in a tricky spot for it almost immediately, the chairman of the judiciary committee -- we had heard him say anything, and then very suddenly, he announced a series of hearings on the impeachment. that's going to be tuesday. it will be much watched. level, the committee
puerto rico debt crisis -- they have been, for months and months trying to negotiate this deal. he finally came up with something, and on wednesday, the national resources committee will have a markup vote to restructure that $70 billion in debt. this has been very controversial, because the democrats are worried about a reduction minimum wage, they are worried about pensioners on the overlooked by the bondholders. there are all kinds of different issues that are going on there. when the white house announced the deal, you have nancy pelosi and the very liberal ranking member of the national resources committee -- they all endorsed it. it wasn't a full throated we love this thing, but they said they are going to support it. you can expect that to move fairly quickly through the committee on wednesday.
you want the floor on the house. -- they areo be going to take up back to the appropriations, they had a number of appropriation bills last week, so moving on that strategy. department of energy looking at the water and info structure projects is the $37 -- $37 billion bill. on the surface, it's not a controversial bill, the department of energy usually passes pretty easily. but last week, the democrats on the veterans affairs bill put a whole bunch of controversial amendments, and it was kind of chaotic on the house floor as a result. there were confederate flag amendments, lgbt amendments, and it's an open rule, and expected to be an open rule on this energy bill, then you can expect the democrats to throw some of these poison pill writers on -- riders on there. this of their going to fund raise on the lgbt bill, which
failed. it could be another shouting match on the house floor over not the form of energy bill in itself, but some of the amendments. host: that's my close -- mike >> live now to the floor of the u.s. house during the final week before the memorial daybreak. the speaker pro tempore: the house will be in order. the prayer will be offered by our chaplain, father conroy. chaplain conroy: let us pray. we give you thanks, god, for giving us another day. as the various members of this people's house return, we ask your blessing upon each as they resume the responsibilities that await them. give each the wisdom and good judgment to give credit to the office they have been honored by